The defendants represented the plaintiff in a personal injury action (hereinafter the personal injury action) arising from injuries (broken boneor back injury and the like) allegedly sustained by the plaintiff on 21 September 2001. In August 2002 the plaintiff obtained a default judgment against one of the defendants in the personal injury action (hereinafter the personal injury defendant). In August 2004, following an inquest on the issue of damages, the Supreme Court entered a judgment in favor of the plaintiff and against the personal injury defendant in the principal sum of $1,400,000 (hereinafter the money judgment).
In May 2005 the plaintiff retained another law firm, to collect on the money judgment. The defendants in this case subsequently signed a “consent to change attorney” form dated 21 March 2006.
A New York Injury Lawyer said that in November 2006 the personal injury defendant moved, inter alia, to vacate the money judgment entered against him on the ground that he had not been properly served with process in the personal injury action. In an order dated 6 June 2007, the Supreme Court, among other things, granted the motion, vacated the money judgment, and dismissed the personal injury action insofar as asserted against the personal injury defendant, with prejudice.
On 9 January 2009, the plaintiff commenced this action against the herein defendants to recover damages for legal malpractice, alleging that the defendants had been negligent in failing to properly effectuate the service of process upon the personal injury defendant prior to the expiration of the statute of limitations in the personal injury action. A Brooklyn Personal Injury Lawyer the defendants moved to dismiss the complaint, inter alia, pursuant to Civil Practice Law & Rules (CPLR) on the ground that it was time-barred by the applicable three-year statute of limitations, and for failure to state a cause of action. The Supreme Court granted those branches of the motion, and the herein court is obliged to modify.
Was there a legal malpractice to warrant the award of damages?
In dismissing a cause of action on the ground that it is barred by the applicable statute of limitations, a defendant bears the initial burden of establishing, prima facie, that the time in which to sue has expired. A Bronx Personal Injury Lawyer said the herein defendants satisfied this initial burden by demonstrating that the alleged legal malpractice occurred more than three years before the instant action was commenced in January 2009. “The burden thus shifted to the plaintiff to aver evidentiary facts establishing that his cause of action falls within an exception to the statute of limitations, or to raise an issue of fact as to whether such an exception applies”. Contrary to the Supreme Court’s determination, the evidentiary facts averred by the plaintiff were sufficient to raise an issue of fact as to whether the statute of limitations was tolled by the doctrine of continuous representation because the defendants continued to perform services for the plaintiff in the personal injury action until approximately March 2006 Thus, it is in the court’s conclusion that the Supreme Court improperly granted the defendant’s motion to dismiss the complaint as time-barred.
However, the Supreme Court properly granted the defendant’s motion to dismiss the complaint for failure to state a cause of action. “A motion to dismiss will fail if, taking all facts alleged as true and according them every possible inference favorable to the plaintiff, ‘the complaint states in some recognizable form any cause of action known to our law’ “. “Affidavits may be used freely to preserve inartfully pleaded, but potentially meritorious, claims”.
In an action to recover damages for legal malpractice, “a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages. 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 if not for the lawyer’s negligence”.
The complaint failed to allege any facts tending to show that if not for the defendant’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. The plaintiff’s remaining contentions are unjustified.
In view of the foregoing, the court rules that there was no legal malpractice to warrant the award of damages.
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