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Plaintiff Files Appeal In New York Appellate Court for Reimbursement of Legal Fees

A man was hit by an automobile while crossing an intersection. It is acknowledged that there were traffic signals controlling the intersection where the car accident happened. Subsequently, the man initiated a personal injury action against the driver and the owner of the automobile that had struck him. The law firm was retained as the trial counsel. The attorney who represented the man is now his opponent.

During the liability phase of the injury trial, there was conflicting testimony as to whether the injured man was in the crosswalk of the intersection when he was struck by the opponent’s vehicle. With the request of the man’s attorney, the trial court notified the jury with the vehicle and traffic law. It stated that a pedestrian has the right of way when crossing on a crosswalk, but has a duty not to leave a curb or other place of safety and enter the path of a vehicle that when a vehicle is so close it is impractical for the driver to give way. A New York Injury Lawyer said that the law further states that it only applies when there is no controlling traffic signal at the intersection, which was not the case in the accident. At the conclusion of the liability phase of the trial, the jury returned a decision finding that the injured man and the driver of the automobile had 50% each at fault in the happening of the auto accident. Following the damages phase of the trial, the jury found that the man’s sustained damages for past and future pain and suffering, past and future lost earnings, and loss of services, at which was reduced by the liability distribution. After unsuccessfully moving to set aside the liability decision, the man appealed from the judgment in the legal action contending that the trial court had made a mistake in notifying the jury on the vehicle and traffic laws. Although the man had not properly maintained his claim, the court reached did in the exercise of the interest of justice jurisdiction, reversed the judgment and ordered a new trial on all issues. In reversing, the court explained that vehicle and traffic laws imposed different rights and duties on drivers and pedestrians, and that section 1111 rather than section 1151 should have been charged because the subject intersection was controlled by traffic signals.

Shortly after the judgment in the legal action was reversed, the man initiates the legal malpractice action against his attorney and the law firm. A Long Island Personal Injury Lawyer said the man alleges that they had committed malpractice by failing to object to the erroneous charge and failing to demand a charge on the vehicle and traffic laws. In the complaint, the man wanted to reimburse the legal expenses incurred in moving to set aside the liability decision and action against the appeal. He also wanted to reimburse the probable costs of the retaining expert witnesses for a new trial. Lastly, he sought damages on the theory that they had lost the value and use of the monies that would have been secured for the opponent’s malpractice.

A second trial in the legal action was conducted. At the conclusion of the liability phase of the second trial, the jury returned a decision finding that both the injured man and the automobile driver had been negligent, but that the injured man’s negligence was not a significant factor in causing the accident. Therefore, legal responsibility for the happening of the accident was given solely to the driver. A Westchester County Personal Injury Lawyer said before the jury decided on the issue of damages, the man and the driver reached an agreement to settle the legal action.

The man thereafter moved for judgment without trial in the instant legal malpractice action contending that due to his lawyer’s malpractice in requesting an incorrect vehicle and traffic law instruction, they would have received a different amount in damages at the conclusion of the first trial. The man therefore argued that they were entitled to approximately $190,000 in damages representing the interest that would have accrued on a $750,000 award if it had been received at the end of the first trial. Although the Supreme Court granted the man’s motion for judgment, it awarded the man’s damages in the principal sum of only $28,703.27, representing reimbursement for the legal fees and expenses incurred in moving to set aside the liability decision in the first personal injury trial, action against the appeal and trying the action for the second time.

The court ordered that the judgment is reversed. The man’s motion for judgment without proceeding is denied. Upon searching the record, judgment without proceeding is awarded to the attorney of the man and the attorney’s firm. The complaint is also dismissed and the order is modified accordingly. The court also ordered that the appeal from the judgment is dismissed as speculative. Lastly, the court ordered that a bill of costs is awarded to the attorney and the firm.

In medical practice, assessment is vital in giving the correct diagnosis, so thus in legal practice. Assessing the appropriate law suit is imperative to be able to represent the person in court properly. If you want to be certain on what action to pursue, ask for qualified lawyer at Stephen Bilkis and Associates.

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