A complainant man sought to recover damages for legal malpractice and filed an appeal from an order of the Supreme Court which granted the lawyers’ motion to dismiss the complaint.
It started when the counsel of the complainant represented him in a personal injury action resulting from injuries apparently sustained by the complainant.
A New York Injury Lawyer said that the complainant obtained a default decision against one of the lawyers in the personal injury action. Subsequent to the investigation on the issue of damages, the Supreme Court entered a money judgment in favor of the complainant. The complainant retained the law firm to collect on the money judgment. However, the lawyer subsequently signed consent to change attorney form in which the firm replaced him as the complainant’s counsel in the personal injury action. The lawyer then filed an action to vacate the money judgment entered against him on the ground that he had not been properly served with process in the said action. In an order, the Supreme Court granted the action to vacate the money judgment and dismissed the action as asserted against the lawyer.
The complainant initiated the action against the lawyer to recover damages for legal malpractice. He claims that the lawyer had been negligent in failing to properly accomplish the service of process upon the personal injury lawyer prior to the expiration of the law of limitations in the action. The lawyer moved to dismiss the complaint on the ground that it was time-barred by the applicable three-year law of limitations and for failure to state a reason for action. The Supreme Court granted the branches of the motion and modified.
A Brooklyn Personal Injury Lawyer said that based on the record, the Supreme Court improperly granted the branch of motion to dismiss the complaint as time-barred and to dismiss a cause of action on the ground that it is barred by the applicable law of limitations. The lawyer accepted the initial burden of establishing that the time in which to sue has expired. The lawyer satisfied the initial burden by demonstrating that the claimed legal malpractice occurred more than three years before the instant action was initiated. Opposing the Supreme Court’s determination, the evidentiary facts claimed by the man were sufficient to raise an issue of fact as to whether the law of limitations was charged by the policy of continuous representation because the lawyer continued to perform services for the complainant. However, the Supreme Court properly granted that branch of the lawyer’s motion which was to dismiss the complaint for failure to state the reason for action. Based again on the record, a motion to dismiss will fail if all facts are assumed as true then every possible conclusion would be favorable to the complainant.
In an action to recover damages for legal malpractice, a complainant must demonstrate that the attorney failed to implement the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession. A complainant must also demonstrate that the attorney’s breach of duty proximately caused the complainant to sustain actual and ascertainable damages. To establish connection, a Bronx Personal Injury Lawyer said that the complainant must show that he or she would have exists in the underlying action or would not have incurred any damages if not for the lawyer’s negligence. The complaint failed to contend any facts inclining to show that the lawyer caused the damages. The complainant would have prevailed in the action of the lawyer’s alleged negligence in failing to serve process upon the lawyer in the personal injury action. The complainant’s remaining arguments regarding dismissal are without merit. As a result, the Supreme Court properly granted the lawyer’s motion to dismiss the complaint.
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