FKB’S BENJAMIN OXENBURG SECURES FIRST DEPARTMENT’S DISMISSAL OF SUIT ARISING FROM UNDERLYING MEDICAL MALPRACTICE ACTION   

04/13/2022

FKB’s Benjamin Oxenburg obtained a unanimous decision from the First Department affirming the pre-answer dismissal of a legal malpractice action.  FKB’s client represented plaintiffs in an underlying medical malpractice action against a Staten Island radiology practice and its doctors for the failure to timely diagnose breast cancer.  After FKB’s client successfully recovered over $400,000 in 2014, plaintiffs retained successor counsel and recovered a further $300,000 in 2017.  In 2018, plaintiffs instituted an action alleging that defendants improperly discontinued the medical malpractice suit against one of the radiologists.  In June 2020, Hon. W. Franc Perry, J.S.C. of New York County Supreme Court granted FKB’s pre-answer motion to dismiss in its entirety, ruling that plaintiffs had failed to state a cause of action for legal malpractice and breach of fiduciary duty.

Following briefing and argument on plaintiffs’ appeal, the First Department recently ruled that Justice Perry had properly dismissed the action.  Specifically, the appeals court ruled that plaintiffs’ complaint did not allege that they had a meritorious claim against the radiologist discontinued from the underlying action, and therefore failed to plead proximate cause sufficient to support a claim for legal malpractice.  The First Department also found that an expert opinion used by plaintiffs in the underlying action supported the conclusion that they did not have a viable claim against the particular radiologist.  The Court further agreed the breach of fiduciary duty claim was duplicative and failed on proximate cause grounds.                 

If you have any questions about this decision, or the defense of attorneys in general, please contact Benjamin Oxenburg.

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