Tuesday, January 17, 2012

The Interest Of Justice

The New York Appellate Division for the First Judicial Department has reinstated a legal malpractice case that had been dismissed on statute of limitations grounds.

The pro se plaintiff had been represented in an arbitration claim. She filed her suit within the three-year limitation period but had trouble serving the law firm.

The court concluded:

Even if this case does not qualify for an extension under the "good cause" exception...we find that it qualifies under the "interest of justice" category. Under this prong of CPLR 306-b, the Court of Appeals has instructed that a court "may consider [plaintiff's] diligence, or lack thereof, along with any other relevant factor . . ., including expiration of the Statute of Limitations, the meritorious nature of the cause of action, the length of delay in service, the promptness of a plaintiff's request for the extension of time, and prejudice to defendant."

Here, plaintiff's attempted March 2008 service, although ultimately deemed defective, was a diligent attempt by a pro se plaintiff to hire a process server to serve defendants at their law firm, within 120 days of the timely filing of a summons with notice. By the time the court ruled on the motions in the 2007 Action, the statute of limitations had expired, precluding the filing of a new action. In addition, defendants were aware of the 2007 Action and appeared to demand a complaint as early as April 2008 - they were not prejudiced by the service errors and were afforded full participation in discovery. Finally, construing the pleading in the light most favorable to plaintiff, as is required on consideration of a CPLR 3211 motion to dismiss, we find that it asserts actions and omissions by defendants that support viable claims for recovery. (citations omitted)

(Mike Frisch)

http://lawprofessors.typepad.com/legal_profession/2012/01/the-new-york-appellate-division-for-the-first-judicial-department-has-reinstated-a-legal-malpractice-case-that-had-been-dismi.html

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