2/7/2014 9:34:00 AM,
Jeff D. Gorman
(CN) - The estate of a lawyer may be liable for allegedly letting a client's wrongful death claims lapse before dying himself of cancer, an appeals court ruled.
Milagros Cabrera blames Raquel Gutierrez's Nov. 4, 2008, death on "negligent care and treatment that was rendered by her doctors and nurses on or about October 26, 2008," according to the ruling.
She claims that Gutierrez's sister retained lawyer Salvador Collazo that month to commence a wrongful death action against the allegedly negligent individuals.
Over a year later, under cover of a memorandum dated Nov. 23, 2009, Collazo allegedly sent the retainer agreement and medical authorizations to fellow attorney Cary Tanzman.
Claiming that no complaint was ever filed in the case, however, Cabrera filed a professional malpractice in the Bronx, N.Y., against Collazo; and the Law Office of Cary M. Tanzman, and Shelley Levy, as executor of Tanzman's estate.
Cabrera said she entered into a retainer agreement with the Tanzman law office that also concerned Collazo on March 11, 2010.
Both lawyers allegedly began rebuffing Cabrera's attempts to contact them in the summer of 2010, some months after Collazo's April 16 conviction on federal immigration and visa fraud charges in Manhattan.
Cabrera said Tanzman filed a certificate of lateness with Surrogate's Court in late September stating that "another attorney" whom the family had first contacted "did nothing on the file for over a year."
About a week after the Surrogate's Court issued letters of limited administration on Oct. 6, Collazo was sentenced to 24 months' imprisonment, according to the complaint.
Tanzman died later that month on Oct. 24 at Memorial Sloan-Kettering Cancer Center. The statute of limitations on a wrongful death action for Gutierrez expired 11 days later on Nov. 4.
A Bronx judge refused to dismiss Cabrera's claims against Tanzman's executor and his law firm, and a four-judge panel with the Manhattan-based First Department of the Appellate Division affirmed Tuesday.
The ruling notes that Tanzman's death certificate is the only evidence about his illness.
"Nor is there any information about the nature of his law practice, beyond a letterhead that identifies three other attorneys as 'of counsel,'" the decision states. "While it is clear from the letter dated September 30, 2010 that Tanzman was aware of the impending expiration of the statute of limitations against his client, it is unknown whether he took any steps to prepare a complaint for filing or whether he attempted to enlist the assistance of any other attorney including the attorneys of counsel in his firm."
The court rejected the Tanzman defendants' claims that the attorney-client relationship ended with Tanzman's death.
"Plaintiff is entitled to the factual inference that, at this late juncture and mindful of his ill health, Tanzman was aware of the need to prepare and file a complaint or to arrange for one to be filed as soon as the necessary letters of administration were received," Justice Peter Tom wrote for the panel.
He added: "Expansion of the record on a more embracive and exploratory motion for summary judgment may or may not disclose facts demonstrating that Tanzman was suddenly struck by a fatal and totally incapacitating episode of cancer rendering him unable to engage the services of another attorney to file a timely complaint on behalf of plaintiff or communicate the necessity to do so. Thus, it would be premature to grant defendant's pre-answer motion and summarily dismiss the professional malpractice claim on the basis of the incomplete record before us."