## Facts

- A New York law firm represented Alice Whalen in recovering her interest in a partnership and obtained a judgment exceeding $1.2 million against Julius Gerzof, a Florida resident.
- Before the judgment was satisfied, Gerzof died, leaving a substantial estate in Florida.
- To protect Whalen’s ability to collect from the Florida estate, the firm retained a Florida attorney (Scott Cagan) to assist with the probate-related steps.
- The firm told Whalen it had retained Florida counsel to monitor the estate and file any required claims to collect the judgment; Whalen had no direct relationship with Florida counsel.
- After learning a Florida estate had been opened, the firm instructed Florida counsel to file a notice of claim and provided the needed information.
- Almost two years later, estate counsel advised that no notice of claim had been filed before the deadline; settlement discussions ended and offers were withdrawn.
- Whalen alleged she could not recover from the estate because the notice of claim was not timely filed under Florida probate law.

## Issues

1. Whether the New York firm had a nondelegable duty to ensure a timely notice of claim was filed in the Florida probate proceeding, making it responsible for Florida counsel’s failure.
2. Whether the New York firm assumed responsibility for the filing and, by retaining Florida counsel as a subagent, had a duty to exercise reasonable care in supervising that counsel—such that failure to confirm the time-sensitive filing constituted negligence as a matter of law.

## Decision

- The Appellate Division modified the orders that had denied both parties’ summary judgment motions.
- The court granted Whalen summary judgment on her legal malpractice theory that the New York firm negligently supervised Florida counsel regarding the notice-of-claim filing.
- The court concluded the firm had assumed responsibility for ensuring the claim was timely filed, treated Florida counsel as its subagent for that purpose, knew a deadline existed, and took no steps to confirm the filing.
- The court treated the failure to perform basic oversight on a straightforward, time-sensitive task as negligence as a matter of law on the supervision claim.

## Legal Principles

- A law firm that undertakes to accomplish a specific task for a client through retained outside counsel may be liable for negligent supervision when the outside lawyer functions as a subagent in carrying out that undertaking.
- The scope of the retaining firm’s duty turns on what responsibility it undertook and communicated to the client, not merely on which lawyer had formal responsibility in the foreign proceeding.
- When the retaining firm knows a filing deadline applies and the task is straightforward, reasonable care includes minimal oversight such as confirming that the filing occurred; failure to do so can warrant summary judgment on breach of duty.

## Conclusion

The court held that, by representing it would protect Whalen’s collection rights through retained Florida counsel and then failing to verify a known, time-sensitive probate filing, the New York firm was negligent as a matter of law for inadequate supervision, entitling Whalen to summary judgment on that malpractice theory.


Whalen v. DeGraff, Foy, Conway, Holt-Harris & Mealey, 53 A.D.3d 912, 863 N.Y.S.2d 100 (N.Y. App. Div. 3d Dep’t 2008)