Labor & Employment Law

Failure to file an appeal may not always support a claim of malpractice

By Harvey Randall, Esq.

Failure to file an appeal may not always support a claim of malpractice
Podszus v Sussman, App. Div., 2nd Dept., 287 A.D.2d 607

Mount Vernon police officer William Podszus was found guilty of charges of insubordination and malicious gossip. The penalty imposed: forfeiture and withholding of 10 days' pay [Podszus v City of Mount Vernon Department of Public Safety, 246 AD2d 548.

Podszus then sued his attorney, Michael H. Sussman, to recover damages for alleged legal malpractice. Podszus' theory:

Sussman failed to file a direct appeal to the Appellate Division within 30 days of the rendering of the determination, as specified in Mount Vernon City Charter Section 120 and that had Sussman done so, the appeal would have resulted in the vacatur of the determination and penalty against him.

When the Supreme Court denied Sussman's motion for summary judgment to dismiss the malpractice action, finding an issue of fact existed with regard to whether the Podszus would have prevailed on the appeal, Sussman appealed.

The Appellate Division ruled that Sussman's motion for summary judgment should have been granted by the lower court. The court said that it found that the Hearing Officer's determination was supported by substantial evidence.

The Appellate Division also ruled that the penalty imposed -- forfeiture and the withholding of 10 days' pay -- was not "so disproportionate to the offense, in the light of all the circumstances, as to be shocking to one's sense of fairness," citing the Pell doctrine [Pell v Board of Education, 34 NY2d 222]

According to the ruling, Podszus would not have prevailed on appeal and thus Sussman's failure to file a timely appeal did not constitute malpractice.

Full post as published by New York Public Personnel Law on March 24, 2008 (boomark / email).