Defeating Motion To Dismiss

Stephen V. Morello, Esq. successfully defeated a motion to dismiss filed by a law firm seeking to dismiss a legal malpractice action, in which they alleged both that they never appeared as attorney for our firm’s client, as well as the expiration of the applicable statute of limitations. Chesney & Nicholas, LLP represents a bar and billiard hall in Manhattan. They were sued under the Dram Shop Act and their insurance carrier initially assigned counsel who requested an extension of time to answer. After a coverage dispute arose, that law firm never filed an answer on behalf of our firm’s client and allowed them to become in default. A motion was filed to compel acceptance of the late answer and the attorney for plaintiff cross-moved for a default. The lower court compelled the acceptance of the answer however, the Appellate Division, Second Department reversed. In defeating the law firm’s motion for summary judgment, the Honorable Carol R. Edmead found that the statute of limitations did not accrue until the Appellate Division, Second Department decided against the bar and billiard hall, and that the law firm did not prove a prima facie entitlement to summary judgment based upon the applicable case law.