Heard: January 10, 2017.
action commenced in the Superior Court Department on April
case was heard by Linda E. Giles, J., on a motion for summary
Rosseel for the plaintiff.
R. Sonneborn for the defendants.
Present: Grainger, Wolohojian, & Neyman, JJ.
September 2009, the plaintiff retained the defendants as
personal injury counsel to represent her with respect to
serious injuries she sustained when she slipped and fell on
ice the year before. Approximately one month later, acting
pro se, she filed for bankruptcy protection, and received a
bankruptcy discharge in early 2010. Thereafter, in 2011, the
defendants allowed the statute of limitations on the personal
injury claim to expire without filing suit. This legal
malpractice suit followed. The question on appeal is whether
the plaintiff's malpractice claims were properly
dismissed on summary judgment on the ground that the
bankruptcy action (or the position the plaintiff took in it)
foreclosed them. We reverse.
additional facts to the analysis that follows, we recite here
only the core facts, and do so in the light most favorable to
the plaintiff, drawing all reasonable inferences in her
favor. See, e.g., Sullivan v. Liberty
Mut. Ins. Co., 444 Mass. 34, 38 (2005). On January 15,
2008, the plaintiff, a State employee, was seriously injured
when she slipped and fell on ice outside the building in
which she worked. The building was owned and/or maintained by
a private entity, Northland Investment Corporation. The ice
had accumulated because of a defective gutter and had not
been salted. The plaintiff's injuries were sufficiently
severe that she lost 410 scheduled work days, and even as
late as September 2012, she remained unable to work full
the workers' compensation proceedings relating to her
injuries, the plaintiff was approached by defendant Martin
Kantrovitz's associate, who told her that the defendants
would like to represent her. She agreed and, by September 9,
2009, had retained the defendants to represent her as
personal injury counsel. The plaintiff alleges that
thereafter the defendants paid little, if any, attention to
her case, did not meet with her in person, repeatedly failed
to respond to her telephone calls, failed to investigate or
pursue her claims, and failed to inquire into her financial
one month after she had retained the defendants as personal
injury counsel, the plaintiff, acting pro se, filed for
bankruptcy protection in October 2009. The plaintiff did not
inform the defendants of the bankruptcy proceeding, nor did
they inquire. At the same time, the plaintiff did not
disclose the personal injury claim in her written filings
with the bankruptcy court. She states that she did not do so
because she did not understand that the bankruptcy forms
called for that information and, more specifically, that she
did not understand the requirement that she disclose
"[o]ther contingent and unliquidated claims of every
nature" pertained to the personal injury suit she had
hired the defendants to pursue.
November 10, 2009, in response to oral questioning by the
bankruptcy trustee at a meeting of creditors, the following
exchange took place:
Trustee: "Does anybody owe you any money?"
Trustee: "Have you been injured in any way --"
Trustee: "-- that you feel you have the right to sue