The question of limited retainers v. handling the entire action for a client comes up in Provenzano v Cellino & Barnes, P.C. 2018 NY Slip Op 32063(U) August 16, 2018 Supreme Court, Suffolk County Docket Number: 14-18725 Judge: Joseph C. Pastoressa. Plaintiff was injured in a motor vehicle accident which Cellino & Barnes took. They did not file a WC claim for the client who alleged she was injured in a work-related accident. Malpractice?
“Capetola testified that he did not handle workers’ compensation claims for defendant, and would
refer any such claims to outside counsel. He recalled that during the intake interview with plaintiff, she told him that she was struck by a car after she finished work. He could not recall whether plaintiff inquired about a workers’ compensation claim, or the number of times that he met with plaintiff. Capetola recalled that he assisted plaintiff in filing a no fault insurance claim. Plaintiff did not complain to Capetola about his handling of her accident case at any point during his representation. The retainer agreement indicated that defendant’s representation of plaintiff was “to prosecute [her] claim for injuries and damages sustained as a result of an accident … (and was] limited to all steps necessary to bring the action to trial, verdict or settlement and· does not include appellate practice, Surrogate’s and/or estate work, legal work pertaining to Medicare Set Aside issues, and legal work pertaining to Medicare lien evaluation.” The scope of legal services to be provided included “initial and ongoing investigation of [the] incident; securing potential witnesses and evidence; gathering appropriate medical records, employment records, wage records, education records and other records; drafting, filing, and responding to appropriate court documents; selection and retention of experts and investigators as necessary; appearance at court proceedings, depositions and arbitrations; conducting settlement negotiations; preparing for trial as appropriate and necessary; and maintaining appropriate contact with the client throughout.” ”
“Defendant contends that it was retained to pursue a tort action on plaintiffs behalf; therefore, it
had no duty to bring a workers’ compensation claim and plaintiffs complaint should be dismissed.
Defendant made a prima facie showing that plaintiff retained its services to bring only a negligence
action against the driver of the vehicle that struck her (see Block v Brecher, Fishman, Feit, Heller,
Rubin & Tannenbaum, 301 AD2d 400, 400, 753 NYS2d 84 [1st Dept 2003]). Plaintiff testified that
when she inquired about a workers’ compensation claim, defendant told her that she did not qualify for workers’ compensation benefits and that he “was not going that route.” Additionally, Capetola testified that he did not handle workers’ compensation claims on defendant’s behalf, and that he generally referred any such claims to outside counsel. There is no indication in the record that Capetola advised plaintiff that he would file a workers’ compensation claim on her behalf and failed to do so. ”
“Accordingly, defendant’s motion for summary judgment dismissing the complaint is granted and
the cross-motion is denied. ”