The Workers’ Compensation and Personal Injury Problem

Pires v Daniella Levi & Assoc., P.C. 2026 NY Slip Op 05330 September 16, 2026

Appellate Division, Second Department illustrates a very common legal malpractice issue that comes up in the personal injury area. Plaintiff is injured at work and hires a workers’ compensation attorney. That attorney either explicitly or implicitly tells the client that it does WC work only and will not bring a 3d party action against the landowner, or the building owner, or, in this case, other construction parties. The 3d party personal injury action is not brought and a legal malpractice case ensues. The cases are often lost when only the WC lawfirm is in the caption, and as here, also lost when there is a PI lawyer who is in/not in the case.

“In an action to recover damages for legal malpractice, the plaintiff appeals, and the defendants Daniella Levi & Associates, P.C., and Daniella Levi cross-appeal, from an order of the Supreme Court, Kings County (Joy F. Campanelli, J.), dated October 2, 2024. The order, insofar as appealed from, granted the motion of the defendants Ugalde & Rzonca, LLP, Francisco A. Ugalde, and Tadeusz Rzonca pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them. The order, insofar as cross-appealed from, denied the motion of the defendants Daniella Levi & Associates, P.C., and Daniella Levi pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them.

ORDERED that the order is affirmed insofar as appealed from; and it is further,

ORDERED that the order is reversed insofar as cross-appealed from, on the law, and the motion of the defendants Daniella Levi & Associates, P.C., and Daniella Levi pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them is granted;”

“On May 25, 2021, the plaintiff retained the defendant Ugalde & Rzonca, LLP (hereinafter Ugalde), to represent him in workers’ compensation proceedings before the Workers’ Compensation Board. A letter of engagement signed by the plaintiff stated that Ugalde “does not handle Personal Injury claims, which may be related to the Workers’ Compensation claim,” and that Ugalde would “not represent [the plaintiff] in any [o]f those types of claims at this time.” Ugalde referred the plaintiff to the defendant Daniella Levi & Associates, P.C. (hereinafter Levi & Associates), to consult with regarding a possible personal injury claim. On or around the same day, the defendant Daniella Levi allegedly called the plaintiff and asked him about his accident. Levi advised the plaintiff that, in her opinion, he “had no case” except for a workers’ compensation claim.

In February 2024, the plaintiff commenced this action to recover damages for legal malpractice based on the defendants’ alleged failure, inter alia, to serve a timely notice of claim. Ugalde and the defendants Francisco A. Ugalde and Tadeusz Rzonca (hereinafter collectively the Ugalde defendants) moved, and Levi & Associates and Levi (hereinafter together the Levi defendants) separately moved, pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against each of them. In an order dated October 2, 2024, the Supreme Court granted the Ugalde defendants’ motion and denied the Levi defendants’ motion. The plaintiff appeals, and the Levi defendants cross-appeal.”

“Contrary to the plaintiff’s contention, the Supreme Court properly granted the Ugalde defendants’ motion pursuant to CPLR 3211(a) to dismiss the amended complaint insofar as asserted against them. “Under CPLR 3211(a)(1), a dismissal is warranted only if the documentary evidence utterly refutes [the] plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Bernstein v Jacobson, 238 AD3d at 1103 [internal quotation marks omitted]; see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326). “To constitute documentary evidence, the evidence must be unambiguous, authentic, and undeniable, such as judicial records and documents reflecting out-of-court transactions such as mortgages, deeds, contracts, and any other papers, the contents of which are essentially undeniable” (Yan Ping Xu v Van Zwienen, 212 AD3d 872, 874 [citations and internal quotation marks omitted]). Here, the engagement letter signed by the plaintiff, the authenticity of which is not controverted, utterly refuted the plaintiff’s allegations that the Ugalde defendants’ representation of him was not limited to his workers’ compensation claim (see Getzel Schiff & Pesce, LLP v Shtayner, 233 AD3d 758, 759; Turner v Irving Finkelstein & Meirowitz, LLP, 61 AD3d 849, 850).”

“”‘Dismissal of the complaint is warranted if the plaintiff fails to assert facts in support of an element of the claim, or if the factual allegations and inferences to be drawn from them do not allow for an enforceable right of recovery’” (Oak Beverages, Inc. v D.G. Yuengling & Son, Inc., 245 AD3d 93, 101, quoting Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 142). Here, viewing the amended complaint in the light most favorable to the plaintiff, the allegations were insufficient to state a cause of action against the Levi defendants. The plaintiff failed to plead specific factual allegations supporting a claim that, but for the Levi defendants’ alleged negligence, the plaintiff would have prevailed in an action against the City of New York (see Coniglio v Dansker & Aspromonte Assoc., 243 AD3d 628, 631-632; Mid City Elec. Corp. v Peckar & Abramson, 214 AD3d 646, 649).”