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New York Appellate Court Determines Whether Defendant is Guilty of Malpractice

Plaintiff retained the services of a legal counsel, the defendants’ law firm (3 defendants), in September 1988 to represent him in a divorce action that had been commenced in 1986 by his former wife. The case was dismissed as abandoned due to plaintiff’s failure to restore it to the calendar within one year of its being marked off. On 4 December 1997 the former wife brought a second action for a judgment of divorce against plaintiff on the ground of cruel and inhuman treatment. On 30 December 1997, plaintiff allegedly retained the law firm of the defendants to defend his interests in the new matrimonial action. The retainer agreement presented states that it is an agreement between plaintiff and the law firm for legal services in the matrimonial action, and is signed by plaintiff and the defendants. The court’s computerized records indicate that the parties did not seek a preliminary conference on the matrimonial matter until January 2001, although the plaintiff was served with a complaint in March 1998.

Meanwhile, according to a New York Injury Lawyer, on March 28, 1998, plaintiff allegedly was injured while standing on the revolving platform of a carousel at an amusement park. According to his examination before trial in the instant action, plaintiff was not seated on the carousel when the alleged incident (accident) occurred. Rather, he was standing alongside a young child, who was riding on a carousel horse, when he allegedly was struck in the back of the leg by a loose pole as the ride was moving. Plaintiff testified that after being struck by the pole, he fell off (trip and fall) the carousel and suffered injuries to his wrists, hands, back, knee, groin and other areas (broken bone). In April 1998, plaintiff allegedly entered into a retainer agreement with the law firm to represent him in a personal injury lawsuit against the owner of the amusement park. Absent from the record, however, is a copy of the retainer agreement for the personal injury action. Plaintiff allegedly met with the defendants on numerous occasions in 1998, 1999 and 2000 regarding both the matrimonial and the personal injury cases. An NYC Personal Injury Lawyer said that is undisputed that defendants failed to commence a personal injury action on behalf plaintiff.

Are the defendants liable for legal malpractice and breach of contract? Should a summary judgment in favor of the plaintiff be issued for failing to timely commence a personal injury action on behalf of the plaintiff?

Allegedly, the defendants have failed on numerous occasions to appear on the matrimonial case, and that several lawsuits and complaints had been filed against the attorney for neglecting legal matters entrusted to him. The first cause of action alleges the negligently-handled matrimonial action and that but for the defendants’ negligence plaintiff would have had his pension value fixed as of the date of the original divorce action in 1988, rather than at its current higher value. The second cause of action alleges that defendants breached the retainer agreement by failing to provide any legal services, despite having been paid legal fees by plaintiff. Lastly, the third cause of action alleges that defendants negligently failed to commence a personal injury action on behalf of plaintiff before the expiration of the statute of limitations. It alleges that “but for defendants’ negligence, lack of diligence and skill, plaintiff would have recovered damages for his personal injuries, medical expenses and loss of income in the sum of $2,000,000.”

The first defendant has not appeared in court and no proof in the record exists that jurisdiction was obtained over him. On the other hand, the 2nd defendant who appeared in court, opposes the motion on the grounds that issues of fact exists as to whether the plaintiff had obtained new representation on the personal injury action prior to the expiration of the statute of limitations and whether he sustained actual damages as a result of the alleged negligence. The 2nd defendant claims that he advised the plaintiff in January 2001 that he could not represent him on the personal injury claim, and that the plaintiff then took the file from his office and retained new counsel on the matter. The 3rd defendant who also appeared in court opposes the motion on the grounds that defendants’ partnership had been dissolved by September 1997, and that the partnership never had any dealings with plaintiff regarding the personal injury claim prior to its dissolution.

Here, the plaintiff failed to meet his burden of establishing entitlement to judgment on his claim as a matter of law. According to an NY Personal Injury Lawyer, in recover damages for legal malpractice, a plaintiff must prove the attorney was negligent, that such negligence was the proximate cause of the loss sustained, and actual damages. The elements of negligence and proximate cause are established with proof that the attorney “failed to exercise that degree of care, skill and diligence commonly exercised by an ordinary member of the legal community,” and that, but for the attorney’s failure to exercise due care, the plaintiff would have prevailed in the underlying action or would not have incurred damages as a result of the attorney’s conduct. In addition, the damages sustained by the plaintiff must be actual and ascertainable. “Mere speculation about a loss resulting from an attorney’s alleged omission is insufficient to sustain a prima facie case of legal malpractice”. The plaintiff failed to establish prima facie that if not for the defendants’ alleged negligence he would have prevailed in the personal injury action against the amusement park owner. The plaintiff failed to demonstrate that the amusement park owner had any knowledge of the alleged defective condition on the carousel or that it could have discovered it through the exercise of reasonable care. Further, the claim that the doctrine of res ipsa loquitur would have been applicable in the personal injury case is incorrect. The doctrine of res ipsa loquitur is a rule of evidence that creates a permissible inference, not a presumption, of negligence, permitting a case to go to a jury without requiring a plaintiff to present direct proof of negligence. Thus, it is inappropriate to apply the doctrine as a basis for granting a plaintiff summary judgment on the issue of liability. Submission of a case under the doctrine of res ipsa loquitur requires proof that – (1) the event was of a kind which ordinarily does not occur in the absence of someone’s negligence; (2) it was caused by an agency or instrumentality in the exclusive control of the defendant; and (3) it was not due to any voluntary action or contribution on the part of the defendant. The doctrine does not relieve a plaintiff from the burden of proving that the person charged with negligence was at fault. In the present case, the element of exclusive control is absent, as visitors to the amusement park, both adults and children, ride the carousel. There is no evidence showing that maintenance and repair work on the carousel was performed by the amusement park itself, not by the manufacturer of the ride or other third party.

What’s more, the plaintiff failed to submit a copy of the retainer agreement allegedly entered into by him and the law firm for legal services related to the personal injury action, or to offer any other documentary or testimonial evidence demonstrating that such agreement was entered into with the law firm. Plaintiff failed to present prima facie proof of the existence of a partnership between the parties in 1998, or that any of them presented themselves as a partner of the other or that they consented to such during the time in question.

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