Suit Against Attorney's Estate Can Proceed

, New York Law Journal

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A gavel in front of clock

The estate of an attorney who died 11 days before the statute of limitations ran out on a case can be held liable for the lawyer's neglect of that case, a unanimous state appeals panel ruled Tuesday.

In his opinion in Cabrera v. Collazo, 310248/11, Appellate Division, First Department Justice Peter Tom (See Profile) rejected the estate's "remarkable defense" that there could no liability because the attorney died while the statute of limitations was still running.

The decision, joined by Justices David Friedman (See Profile), Helen Freedman (See Profile) and Paul Feinman (See Profile), affirmed an Oct. 12 ruling by Bronx Supreme Court Justice Sharon Aarons (See Profile) refusing to dismiss the case.

The plaintiff, Milagros Cabrera, hired the now-deceased attorney, Cary Tanzman, to represent her in a wrongful death case alleging that her sister, Raquel Gutierrez, died on Nov. 4, 2008 as a result of negligent medical care.

On Sept. 30, 2010, Tanzman sent a letter to the Surrogate's Court asking for letters of administration for Gutierrez's surviving family, saying that the statute of limitations in the wrongful death case was about to run out. Those letters were issued on Oct. 6, 2010.

However, on Oct. 24, 2010, Tanzman died at Memorial Sloan-Kettering Cancer Center at age 61. The two-year statute of limitations on the wrongful death claim expired on Nov. 4. No complaint was filed before the statute of limitations expired.

Cabrera did not learn of Tanzman's death until eight months later, in August 2011, when Tanzman's law office sent her the case file after she asked about the status. Cabrera then sued Tanzman's estate and his law office for legal malpractice.

The defendants filed a pre-answer motion to dismiss. They said that no injury accrued until the statute of limitations ran out, and at that time, Tanzman was no longer Cabrera's attorney because he had died. Aarons denied that motion, and the defendants appealed.

Tom wrote in Tuesday's opinion that, at the motion to dismiss stage, Cabrera must be granted the most favorable inferences from the facts.

Specifically, he wrote, in the absence of any evidence about the cause of Tanzman's death, Cabrera is entitled to the inference that he died from terminal cancer, since he died in a cancer ward.

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