The following e-filed documents, listed by NYSCEF document number (Motion 001) 16, 17, 18, 19, 20, 21, 22, 23, 24, 25, 26, 28, 29, 30, 31, 32, 33, 34, 35, 36, 37, 38, 39, 40, 41, 42, 43, 44, 45, 46, 47 were read on this motion to/for DISMISSAL. DECISION + ORDER ON MOTION Motion by Defendants Brian M. Mittman, Esq. (“Mittman”) and Markhoff & Mittman, P.C., (“Mittman Firm”) (collectively, “Mittman Defendants”) to dismiss the complaint as against them, pursuant to CPLR 3211 (a) (5) and (7), is granted for the reasons stated herein. BACKGROUND Plaintiff Paul Schwenger brings the instant legal malpractice action against several individual attorneys and law firms who represented him in a prior personal injury and/ or workers compensation action, Schwenger v. NYU, No. 114525/2003 (Sup Ct, NY County), et al sub nom. (the “underlying action”). In that underlying action, Plaintiff alleged in sum and substance that he was exposed to a virus because of a lab accident at NYU. Based upon the instant motion papers, there appears to be no dispute that the underlying action was initially brought in Supreme Court, New York County, in 2003. From early on it apparently became clear that a significant issue in the underlying action concerned whether Plaintiff was an employee of NYU such that his exclusive remedy would be pursuant to the Workers’ Compensation Law (the “applicability issue”). According to Mittman Defendants, they were retained by Defendant Paul B. Weitz, Esq. and Defendant Weitz, Kleinick & Weitz, LLP (“Weitz Firm”) (collectively, “Weitz Defendants”), sometime in 2004, to litigate the applicability issue. There is no dispute that between 2004 and 2011, Mittman Defendants made multiple appearances before the Workers’ Compensation Board to litigate the applicability issue. There also appears to be no dispute that on or about March 2013, the full panel of the Workers’ Compensation Board issued a decision (the “2013 Decision”) determining that there was an employee-employer relationship between Plaintiff and NYU and, as such, Plaintiff’s exclusive remedy was through the Workers’ Compensation Law. There also appears to be no dispute that shortly after the 2013 Decision, Mittman and Plaintiff communicated via e-mail, wherein Mittman expressed to Plaintiff that Plaintiff’s only recourse was to take an appeal before the Appellate Division, Third Department; and Mittman further communicated that he was “not in a position” to perfect such an appeal on Plaintiff’s behalf. (See Mittman Aff. in Supp. 14-20; Schwenger Aff. in Opp.
