Appellate Division, Second Department Affirms Dismissal of Claims Against Orthopedic Surgeon

In 2014, Supreme Court, Richmond County dismissed the Complaint in an action in which it was claimed that our client, an orthopedic surgeon, negligently performed a right MTP fusion. Plaintiff's attorney had failed to provide court-ordered discovery, failed to attend court appearances, and defaulted on our client's motion to compel, culminating in the dismissal of the Complaint with prejudice in July of 2014. Two years later, plaintiff retained new counsel, filed a motion to vacate the dismissal, and when her motion was denied, took appeal. In her appellate brief, she noted that her prior attorney had been indicted for embezzlement in late 2014, a fact of which she did not become aware until 2016. She contended that she should not be punished for her lawyer's criminal conduct which led to his neglect of her case. In response, we argued that plaintiff had failed to take reasonable steps to ascertain the status of her case, especially in light of the prolonged stretches of time in which she had no communication with her former attorney. We also cited to a line of cases which establish that an attorney's conduct is properly imputed to the client. The Appellate Division, Second Department ruled in favor of our client, affirming the lower court's order and awarding costs associated with the appeal.