Apr 15th, 2016

FKB’s Stefanie A. Singer obtains dismissal of a legal malpractice action arising out of an underlying personal injury matter

FKB’s client is a prominent New York plaintiff’s personal injury firm. The matter arose from the defendant firm’s representation of a plaintiff (the “Plaintiff”) in a personal injury action involving a slip and fall accident in which the Plaintiff sought substantial monetary damages resulting from an alleged torn ACL, surgery, and lost wages (the “Underlying Action”).

The defendants in the Underlying Action did not prevail on summary judgment and, with the parties unable to reach a settlement, the case was marked ready for trial. Just before the trial, the case was marked off the calendar to permit the Plaintiff to undergo arthroscopic surgery to his knee. After the Plaintiff underwent surgery and treatment, the case was dismissed for the defendant firm’s alleged failure to timely restore the case to the trial calendar.

The Plaintiff subsequently brought a legal malpractice claim against the defendant firm, asserting that, but for the firm’s alleged failure to timely restore the personal injury action, the Plaintiff would have obtained a substantial recovery for his personal injuries.

Relying primarily on the record and discovery obtained in the Underlying Action, and prior to any depositions being held in the legal malpractice case, FKB moved for summary judgment on the grounds that the Plaintiff could not demonstrate the proximate cause element of his legal malpractice claim (i.e., that he could not establish he would have succeeded in the Underlying Action if it had been timely restored). FKB’s motion strategically attacked the Plaintiff’s case from several angles, containing alternative arguments, some of which were not raised by the underlying defendant. FKB argued that: (1) Plaintiff’s personal injury claim was barred by the assumption of risk doctrine; (2) alternatively, Plaintiff’s personal injury claim was barred for failure to establish that the underlying defendant had notice of the alleged defect; and (3) Plaintiff did not suffer damages proximately caused by the underlying accident.

Agreeing with FKB’s arguments, and in reliance upon the record in the Underlying Action alone, Justice Dufficy of the Supreme Court, Queens County, granted FKB’s motion for summary judgment, dismissing the legal malpractice claim against the defendant firm. This dismissal, obtained prior to substantial discovery or depositions being held in the legal malpractice action, saved FKB’s client significant time, as well as the emotional and financial expense, associated with defending the Plaintiff’s claims.

If you have any questions about this decision, or the defense of attorneys in general, please contact  Stefanie A. Singer.