FKB’s Andrew S. Kowlowitz and Aaron M. Barham successfully obtained a decision from the New York Supreme Court Appellate Division, First Judicial Department affirming a favorable pre-answer dismissal of a legal malpractice case.
In the underlying EPLI action, plaintiff alleged that he was wrongfully terminated due to his national origin and as retaliation for complaining about harassing comments. In the instant complaint, plaintiff alleged that his attorneys negligently opposed the underlying summary judgment motion, and in making the strategic decision to submit an appeal without oral argument. On October 30, 2017, Justice Richard F. Braun (retired) granted FKB’s pre-answer motion to dismiss without opposition. On May 3, 2018, Justice W. Franc Perry issued a decision denying plaintiff’s motion to vacate the dismissal order, holding that plaintiff had failed to establish an excusable reason for failing to timely oppose the motion to dismiss, and that plaintiff’s legal malpractice claims lacked merit.
On June 27, 2019, the Appellate Division of the Supreme Court, First Judicial Department unanimously affirmed the lower court’s decision, agreeing with FKB’s arguments that the plaintiff could not provide a reasonable excuse for failing to timely oppose the motion, and that plaintiff’s claims were barred by the statute of limitations, collateral estoppel, and inability to demonstrate “but-for” proximate causation.