Mignott v Kreidman

Mignott v Kreidman 2009 NY Slip Op 06723 [65 AD3d 972] September 29, 2009 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, November 4, 2009

Hazel Mignott, Appellant,
v
Melvin Kreidman et al., Respondents, et al., Defendant.

—[*1] Schwartz & Ponterio, PLLC, New York (John Ponterio of counsel), for appellant. Ephrem J. Wertenteil, New York, for respondents.

Order, Supreme Court, New York County (Walter B. Tolub, J.), entered March 24, 2005, which granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

Defendant attorneys were not negligent for failing to anticipate an appellate development (see Darby & Darby v VSI Intl., 95 NY2d 308 [2000]; Gabrielli v Dobson & Pinci, 51 AD3d 571, 572 [2008]). Although their position was later rejected in Baez v New York City Health & Hosps. Corp. (80 NY2d 571 [1992]) and on appeal in the underlying medical malpractice action (Mignott v New York City Health & Hosps. Corp., 250 AD2d 165 [1998], lv denied 93 NY2d 807 [1999]), defendants were not negligent in assuming at the time of their representation that the statute of limitations was tolled pending a General Municipal Law § 50-h examination, since the only analogous authority at the time supported their understanding (see Serravillo v New York City Tr. Auth., 51 AD2d 1027 [1976], affd 42 NY2d 918 [1977]). The inapposite authorities relied upon by plaintiff to demonstrate the attorneys acted unreasonably involved municipalities, not public authorities or public benefit corporations, where the governing statute contained an express provision that the pendency of a section 50-h examination did not toll or extend the limitations period. Plaintiff's contract cause of action, based on the same facts and seeking the same damages as the insufficient malpractice claim, was duplicative (see Rivas v Raymond Schwartzberg & Assoc., PLLC, 52 AD3d 401 [2008]; Turk v Angel, 293 AD2d 284 [2002], lv denied 100 NY2d 510 [2003]).

In view of the foregoing, it is unnecessary to address plaintiff's contention that there was [*2]an issue of fact as to whether defendants' alleged negligence was the "but for" cause of her loss. Concur—Mazzarelli, J.P., Saxe, Moskowitz, Renwick and Richter, JJ. [See 7 Misc 3d 1021(A), 2005 NY Slip Op 50687(U).]