On appeal from the Superior Court of New Jersey, Law Division, Essex County.
Approved for Publication November 12, 1997.
Before Judges Long, Stern and Kleiner. The opinion of the court was delivered by Stern, J.A.D.
The opinion of the court was delivered by: Stern
The opinion of the court was delivered by
After attorney Sheldon Weinstein defaulted in this legal malpractice action, summary judgment was granted in favor of defendant Robert C. Thelander, and plaintiffs appeal from the dismissal of their case against him. We reverse the grant of summary judgment to Thelander.
The issue before us relates to the responsibility of attorney Thelander for the alleged malpractice of Weinstein in letting a statute of limitations run after he was retained to represent plaintiffs. Plaintiff Mariusz Staron was allegedly injured in an automobile accident on or about October 20, 1985, and the parties agree that the complaint had to be -but was not -filed within two years thereof.
The record before the Judge on Thelander's motion for summary judgment reveals the following. After the accident, plaintiff was referred to Weinstein by a friend. He recalled meeting Weinstein in "at least two" locations. Plaintiff first met with Weinstein at his Elizabeth office and thereafter "in a different place." He did not recall seeing Weinstein "in any offices that bore the name of Robert Thelander, Esq." or "at 603 Springfield Avenue in Summit," Thelander's address, or "ever meeting with" Thelander.
An "Agreement to Provide Legal Services" ("retainer agreement"), dated November 7, 1985, was executed by plaintiffs and Weinstein. The first page of the agreement refers to "Sheldon G. Weinstein, Esq. whose address is 603 Springfield Ave., Summit, NJ" as the "law firm" retained, but on the second page the law firm is listed as "Robert C. Thelander, Esq." above Weinstein's signature. In a letter addressed to State Farm County Mutual Insurance Co. ("State Farm") dated November 8, 1985, a day after the retainer was executed, Weinstein wrote on Thelander stationery that "we represent" Mariusz Staron and requested Personal Injury Protection benefits. Weinstein was listed as "OF COUNSEL" on the top right corner of Thelander's stationery, and a copy of the letter was sent to plaintiffs. Another letter to State Farm dated the same day on similar Thelander stationery was sent by Weinstein, with a copy to plaintiffs, making a claim based on the driver's negligence.
In his motion for summary judgment Thelander certified:
6. By letter of August 15, 1986, I advised Mr. Weinstein that I was terminating my relationship with him. At that time, my secretary prepared an inventory of pending matters of which I was aware and unpaid bills for services previously rendered and sent them to Mr. Weinstein. With respect to suits in process, I prepared and filed Substitutions of Attorney with various courts involved and further wrote to all of the clients of whom I had knowledge, advising them that Mr. Weinstein and I were discontinuing our association and giving them Mr. Weinstein's home address so that they could contact him directly as their lawyer. ...
7. My first knowledge of Mr. and Mrs. Staron's relationship with Mr. Weinstein was upon my being served with the Summons and Complaint in the present matter.
8. My relationship with Mr. Weinstein was fully terminated as of September 30, 1986.
10. At no time did Mr. Weinstein ever advise me of the existence of Mr. and Mrs. Staron as his clients, nor was there any file kept in my ...