A New York appellate court has reversed the dismissal of a legal malpractice case. In Henneberry v. Borstein, a woman sued her attorney for negligently representing her in arbitration proceedings against a former employer. The client had lost her case in the arbitration. She then brought a legal malpractice against the attorney who represented her in the proceeding.
The client filed an action pro se. She served a copy of the summons on the attorney, but did not serve the complaint at the same time, but did serve it shortly thereafter. The attorney moved to dismiss on the basis of improper service. The client then moved for an extension of time to effect service.
The court dismissed the action without prejudice and granted the client’s motion, conditioned upon her paying another filing fee and properly serving a summons and complaint within 30 days. The client then filed a new complaint, but the court dismissed the new filing as untimely.
The client appealed both dismissals. The appellate court reversed the first order on the basis that it was inconsistent to dismiss the complaint, while at the same time allowing the client an extension of time to effect service. The court further ruled that it was in the interest of justice to allow the extension because the client made a good faith attempt to effect service and the attorney had knowledge of the complaint soon after its filing. The court then reversed the dismissal of the new complaint, holding that that it was in reality an amendment of the original complaint. The case was remanded for further proceedings.
Decision: Henneberry v. Borstein
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