Andrew S. Kowlowitz and Eric D. Mercurio win motion for summary judgment dismissing legal malpractice claim arising out of personal injury litigation.4/12/11

FKB's client is an established personal injury law firm (the "Law Firm") who maintains an office in Queens, New York. On April 12, 2011, Hon. Martin M. Solomon of Kings County Supreme Court issued an Order granting FKB's motion for summary judgment dismissing the legal malpractice Complaint. This legal malpractice action arose from the Law Firm's representation of the Plaintiff in a personal injury claim arising from a motor vehicle accident. The Law Firm obtained a settlement from the underlying tortfeasor's automobile insurer for policy limits. Thereafter, Plaintiff declined to accept the settlement proceeds and instead commenced an action against the Law Firm.

Plaintiff alleged that the Law Firm failed to advise the Plaintiff of certain personal assets of the underlying tortfeasor prior to Plaintiff agreeing to settle for the insurance policy limits. Plaintiff further alleged that the underlying tortfeasor maintained substantial assets, which could have been used to satisfy a judgment in excess of the insurance policy limits. Plaintiff claimed that the Law Firm's failure to advise him of this potential avenue of recovery amounted to negligent and misinformed advice, upon which Plaintiff relied when he voluntarily agreed to accept the insurance policy limits in full satisfaction of his claim. Through extensive non-party discovery of the underlying tortfeasor's assets, FKB was able to prove that the underlying tortfeasor did not, in fact, maintain collectable assets and was essentially "judgment proof."

Following discovery, FKB moved for summary judgment primarily on the grounds that Plaintiff could not satisfy his burden to prove that "but for" the alleged negligence of the Law Firm, he would have received additional compensation for his injuries in excess of the underlying insurance policy limits. Following oral argument of the motion for summary judgment, the Court held that the Plaintiff could not prove that the underlying tortfeasor maintained sufficient assets to satisfy a potential judgment. The Court further held that FKB successfully demonstrated that the Plaintiff made an informed and voluntary decision to accept the settlement in full satisfaction of his claim. FKB's motion for summary judgment was granted in its entirety and Plaintiff's Complaint was dismissed with prejudice.

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