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May 2015

Gordon & Rees New York Team Obtains Voluntary Dismissal in Legal Malpractice Action

On May 21st, Gordon & Rees New York partner Joseph Salvo and associate Adam Furmansky obtained a voluntary dismissal on behalf of their attorney clients in a legal malpractice action.

Plaintiff, an employee of the New York Hotel Trades Council, alleged to have suffered an undiagnosed acoustic neuroma. Plaintiff claimed that she treated at the New York Hotel Trades Council’s medical center and was forced to undergo surgery for her acoustic neuroma, which was left undiagnosed for a period of years by the medical staff at the Trades Council. The failure to diagnose the acoustic neuroma resulted in surgery only being able to remove part of the tumor, and after subsequent radiotherapy, Plaintiff was left with partial hearing loss, facial paralysis, and extensive nerve surgery (including nerve transplants). Plaintiff ultimately filed a claim for legal malpractice against Gordon & Rees's clients, alleging that Gordon & Rees’s clients failed to timely commence a medical malpractice action on behalf of Plaintiff.

During discovery, through carefully tailored interrogatory demands served by the Gordon & Rees team, Plaintiff admitted that 1) the medical center’s professional services were offered and paid for by the employer; 2) the medical services she received were not available to the general public; and 3) she obtained the services, not as a member of the public, but only as a consequence of her employment. As a result of these sworn admissions, the Gordon & Rees team moved for summary judgment prior to depositions, arguing that the complaint was barred by New York Workers’ Compensation Law §29(6).

More specifically, the Gordon & Rees team’s motion relied primarily upon Feliciano v. New York Hotel Trades Council, 281 A.D.2d 312, 722 N.Y.S.2d 498 (1st Dep’t. 2001). In Feliciano, the plaintiff, a nurse, sued her employer for negligence in failing to diagnose and timely treat her medical condition. In determining that Feliciano could not maintain an action against her employer, the Court discussed the "fellow-employee rule" of New York’s Workers' Compensation Law. In so doing, the court noted: “The ‘fellow-employee rule’ of the Workers' Compensation Law provides that ‘[t]he right to compensation or benefits under this chapter, shall be the exclusive remedy to an employee ... when such employee is injured or killed by the negligence or wrong of another in the same employ’ (Workers' Compensation Law § 29[6]). As this Court has recently pointed out, analysis of whether the provision applies in a given instance must focus on three key factors: "the doctor's professional services were offered and paid for by the employer; the services were not available to the general public; and plaintiff obtained the services not as a member of the public but only as a consequence of his employment.”

After reviewing the motion, Plaintiff agreed to voluntarily discontinue the action with prejudice.

Joseph Salvo



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