Legal Malpractice

A Jury Question in Legal Malpractice

By (Andrew Lavoott Bluestone)

This case cuts to the center of a legal malpractice case, nicely illustrating the difference between legal malpractice and all other disciplines.  Greene v Sager ; 2010 NY Slip Op 08068 ; Decided on November 9, 2010 ;Appellate Division, Second Department  is a twin story.  First the mistake by the attorney:  "The defendants were retained by the plaintiff to represent her and to recover damages for injuries she allegedly sustained when she stepped off a sidewalk and fell into a depressed area in a street in Queens, where the plaintiff alleges that she observed Consolidated Edison employees working on the day of her accident. The defendants failed to commence an action within the statute of limitations period, and the plaintiff commenced this action against them, alleging legal malpractice. "

Next, the additional step in proving legal malpractice and the aggressive defense offered by a competent legal malpractice firm.  Defense firms made motions for summary judgment on the slightest whim, and are often awarded for their audacity.  Here they were not.

"To succeed on their motion for summary judgment, the defendants were required to demonstrate that the plaintiff is unable to prove at least one of the essential elements of a legal malpractice cause of action (see Conklin v Owen, 72 AD3d 1006, 1007; Shopsin v Siben & Siben, 268 AD2d 578). The defendants, as movants, failed to meet this burden (see Eisenberger v Septimus, 44 AD3d 994, 995; Shopsin v Siben & Siben, 268 AD2d at 578). The plaintiff similarly failed to meet her burden of establishing entitlement to judgment as a matter of law as to the defendants' liability for malpractice since there were triable issues of fact whether she would have prevailed in the underlying action to recover damages for her injuries (see Theresa Striano Revocable Trust v Blancato, 71 AD3d at 1123; Eisenberger v Septimus, 44 AD3d at 995; Avery v Sirlin, 26 AD3d 451, 452). Accordingly, the Supreme Court properly denied the defendants' motion and the plaintiff's cross motion for summary judgment. "
 

Full post as published by New York Attorney Malpractice Blog on November 15, 2010 (boomark / email).