Missed Time Line Does Not Necessarily Mean Officer’s Lawyer Liable For Malpractice

Christopher Pannone was a police officer for the New York Police Department. The Department has a rule that officers using sick leave are required to remain at home, subject to certain exceptions. Pannone used sick leave on July 22, 1998, but left his home.

During an investigation into his sick leave use, Pannone was untruthful to an investigator during what is known as a GO-15 interview. At a later disciplinary hearing, Pannone admitted that he knew he was required to remain at his residence while on sick report and that he gave a false account of the reason for his absence at the GO–15 interview. Pannone was subsequently fired.

Pannone challenged his termination through what New York refers to as a “Article 78 proceeding.” However, a court dismissed the challenge, finding that Pannone’s lawyers had failed to file Article 78 petition on time. Pannone then sued his lawyers, claiming they were liable for legal malpractice.

An appeals court dismissed Pannone’s lawsuit. The Court noted that “to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney defendant failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages. A plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence.”

Therein lay the problem, found the Court – Pannone would not have won the appeal even had it been filed on time: “The giving of false statements in the course of an official investigation has been upheld as a ground for dismissal from municipal employment. There is no merit to Pannone’s argument that the state of the law in 2000, when the Article 78 proceeding was brought, would have dictated a different result, dishonest statements to police department investigators constitute an independent basis for termination.”

Pannone v. Silberstein, 2014 WL 2459492 (A.D. 2014).