Legal Malpractice

A Puzzle in Legal Malpractice

By (Andrew Lavoott Bluestone)

We will be the first to say that we simply do not understand this Second Department decision.  Kennedy v H. Bruce Fischer, Esq., P.C. ;2010 NY Slip Op 08709 ;Decided on November 23, 2010
Appellate Division, Second Department has the following two ideas that we cannot put together and harmonize:  Plaintiff was able to obtain a $ 1.4 million inquest verdict against a personal injury defendant, but when that felll apart, could not prove that it had a meritorious cause of action and that "but for" the attorney's mistake would have won the case.
 

" To establish causation, "a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer's negligence" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442; see Kuzmin v Nevsky, 74 AD3d at 898; Rosenstrauss v Jacobs & Jacobs, 56 AD3d 453; Wray v Mallilo & Grossman, 54 AD3d 328, 329; Carrasco v Pena & Kahn, 48 AD3d 395, 396).

Here, even as amplified by the plaintiff's affidavit, and according every possible inference favorable to the plaintiff, the complaint failed to allege any facts tending to show that, but for Fischer's alleged negligence in failing to serve process upon the personal injury defendant in the personal injury action, the plaintiff would have prevailed in that action insofar as asserted against the personal injury defendant (see Kuzmin v Nevsky, 74 AD3d at 898; Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083; Rau v Borenkoff, 262 AD2d 388, 389; Weiner v Hershman & Leicher, 248 AD2d 193). The plaintiff's remaining contentions regarding dismissal pursuant to CPLR 3211(a)(7) are without merit. Accordingly, the Supreme Court properly granted that branch of Fischer's motion which was to dismiss the complaint pursuant to CPLR [*3]3211(a)(7). "

Full post as published by New York Attorney Malpractice Blog on December 01, 2010 (boomark / email).