FKB's Andrew Kowlowitz and Bain R. Loucks obtain dismissal of legal malpractice action on basis that underlying claim is still viable and plaintiff failed to give notice of an underlying accident to support his claim for uninsured motorist benefits.7/30/09

The defendant attorneys were retained to represent plaintiff in an underlying motor vehicle/pedestrian accident. Plaintiff was riding his bicycle and was struck by a motor vehicle. When the police arrived, plaintiff was arrested for stealing the bicycle. Several days after the accident, plaintiff retained the defendants to represent him. As the only eyewitness to the accident, plaintiff advised the defendants of the identity of the alleged tortfeasor. Defendants commenced an action and ultimately obtained a valid judgment, which could not be enforced.

Thereafter, plaintiff commenced a legal malpractice action against the defendant attorneys on the grounds that that defendants (1) failed to conduct a proper investigation into the identity of the underlying tortfeasor; and (2) failed to obtain uninsured motorist benefits on behalf of plaintiff. Rather than serving an Answer to the Complaint, FKB filed a pre-Answer motion to dismiss on the grounds that plaintiff could not establish that defendants were the proximate cause of plaintiff's alleged damages as the statute of limitations on the underlying negligence claim had not expired. Therefore, plaintiff was free to conduct an investigation and commence an action against the alleged proper defendants. In addition, FKB argued that plaintiff's claim for uninsured motorist benefits had grown stale prior to plaintiff's retainer of the defendants as plaintiff failed to give notice to the relevant authorities within twenty-four (24) hours of the alleged accident.

The Court agreed, and on July 30, 2009 Justice Wayne Saitta, J.S.C. granted the motion and dismissed the Complaint. Justice Saitta found that plaintiff could not establish proximate causation as the underlying claim was still viable. Justice Saitta further noted that the arrest report was insufficient to provide the police with notice, as required by the Insurance Law, to support plaintiff's claim that the defendants failed to pursue a claim for uninsured motorist benefits on plaintiff's behalf. Thus, plaintiff's claim that defendants failed to obtain uninsured motorist benefits was dismissed as well.

FKB's Andrew Kowlowitz and Bain R. Loucks prepared the winning papers.

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