Plaintiff sues her former attorney, defendant Marina Tylo asserting that attorney Tylo served the summons with notice upon her husband in the underlying matrimonial action several days before the summons with notice was actually filed and an index number purchased. Attorney Tylo was discharged several days later and replaced with defendant Robert Piken, Esq. Plaintiff claims that attorney Piken did not take any affirmative steps to rectify the defective service and inter alia failed to draft good and proper legal documents. The matrimonial matter had ripened into a judgment before the defect in service was discovered by the Judicial Hearing Officer conducting a hearing on the husband's motion to set aside the settlement agreement and vacate the judgment of divorce. The Judicial Hearing Officer vacated the judgment and along with it the settlement agreement which provided terms that were favorable to the plaintiff-wife.

Defendant Tylo moves to dismiss the complaint principally arguing that since there was time for the successor attorney to have rectified her error, plaintiff cannot establish the requisite causation in a malpractice case in that she cannot claim that "but for" attorney Tylo's negligence the judgment would not have been vacated. For this proposition defendant cites a number of cases that do appear to say just that under circumstances superficially similar to our own. See e.g. Kozmol v. Law Firm of Allen L Rothenberg, 241 AD2d 484(2d Dept. 1997); Perks v. Lauto & Garabadian, 306 AD2d 261(2d Dept. 2003); Albin v. Pearson, 289 AD2d 272(2d Dept. 2001). However these cases address negligent conduct that was far more open and obvious than what occurred here. In Kozmol there was a dismissal after a hearing attended by successor counsel who should have been aware of the statute that affords a period of some 120 days for the recommencement of the action. In Perks, the claim was that the attorney failed to properly [*2]investigate the assets and insurance coverage of the offending driver and the Court held that successor counsel had sufficient opportunity to protect the plaintiff's rights. Similarly, in Albin, the statute of limitations expired on a mortgage foreclosure action and the court held that the foreclosure remained a viable option for a period of time such that successor counsel had sufficient opportunity to adequately protect the plaintiff's rights.

In our case, it is not readily apparent that there was a problem with the service. In fact the computerized docket sheet notations recite that the summons and complaint were filed on November 9, 2005 and the affidavit of service was filed on December 2, 2005, making it appear that everything occurred in the normal and legally proper sequence. There is very little here to alert the second practitioner to look at the affidavit of service and determine what the actual date of service was. Indeed, the error was not discovered until after the judgment was filed. Accordingly, it cannot be said that the error could so readily have been detected that all responsibility for the subsequent events should be lifted from the initial attorney's shoulders.

Moreover, the above recited decisions are silent with respect to the argument plaintiff brings before this Court. Plaintiff contends in essence that the defendants are successive tort-feasors who should be considered jointly and severally liable because their conduct produced a single indivisible injury. Under this theory of liability, the complaint states a cause of action and the question to be answered by a jury is whether " each defendant owed a duty to plaintiff and whether, by breaching their respective duties they contributed to plaintiff's ultimate injury claimed to have been caused by each defendant." Ravo by Ravo v. Rogatnick, 70 NY2d 305(1987).

In Schauer v. Joyce, 54 NY2d 1(1981), two attorneys were successively involved in the representation of the plaintiff. The Court of Appeals held that "the pleadings set forth an ample basis for holding that the alleged negligence of both attorneys was responsible for the same injury . . . In effect [the original attorney] has raised a claim that [the successor attorney] as an independent, successive tort-feasor, has contributed to or aggravated [plaintiff's] injuries . . . both [attorneys] may be liable to [plaintiff] if their successive representations of her were negligent, for at least a portion of the same damages claimed by her." Thus the Schuaer Court held that the original attorney's third party complaint for contribution states a valid cause of action. In Lanoce v. Anderson, Banks Curan & Donoghue, 259 AD2d 965(4th Dept. 1999), where an untimely claim could have been revived by the successor attorneys, the Court held that the failure of the successor attorneys to make a motion for leave to assert an untimely claim may render both the original and the successor attorneys "independent and successive tort-feasors who are jointly and severally liable" for the plaintiff's loss. See also Mongon v. Banks, Pickett, Gruen & Shapiro, 286 AD2d 426(2d Dept. 2001).

In the instant case, it cannot be said that the successor attorney's failure to detect the subtle but nonetheless fatal flaw in service was such as to completely exonerate the attorney who actually was responsible for the service. Law and logic dictate that a jury must decide exactly how the responsibility is to be parsed.

Accordingly, defendant, Marina Tylo's motion to dismiss is denied.

This Constitutes the decision and order of the Court.

J.S.C.