Ruotolo v. Mussman & Northey, C.A. No. 9852, 109449/08: New York Appellate Court Affirms Judgment for Attorney in Legal Malpractice Case


The attorney, provides this analysis of a legal malpractice action against a New York lawyer:

A New York appellate court has affirmed a trial court’s decision granting summary judgment for an attorney in a legal malpractice action because the client could not prove that the attorney’s conduct caused him harm.

In Rutolo v Northey, a New York City police officer drafted a report, which identified certain environmental hazards at his precinct. After submitting the report to his superiors up to his retirement years later, the officer experienced adverse treatment from the department, including assignments to undesirable shifts, denial of leave time, and a transfer to a less popular precinct. The officer then hired an attorney to represent him in a lawsuit against the department for violation of his First Amendment rights.

At the time the case was filed, censorship of any speech, whether in the course of employment or not, could substantiate a claim for a First Amendment violation. However, while the case was pending, the Supreme Court of the United States ruled that speech made pursuant to an employee’s official duties could no longer be the basis of that employee’s claim. This new ruling would also apply to a similar claim filed in Massachusetts, because it is a federal decision.

Due to the change in the law, the client’s case was dismissed. The client then brought a legal malpractice suit against the attorney for his failure to amend the complaint to add a separate count, which the client alleged would have survived under the new law. The attorney moved for summary judgment, which the trial court granted finding that the report was made in the course of the officer’s employment the client could not have successfully stated a cause of action under the new law. The client appealed.

The appellate court agreed and affirmed the judgment for the attorney. Because the attorney’s failure to amend the complaint did not jeopardize the underlying case, the officer could not prove the causation element of his malpractice claim as a matter of law. Summary judgment was therefore appropriate.

Decision: Rutolo v Northey

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