FKB wins motion to dismiss legal malpractice claim against personal injury attorney in Queens County.9/8/2008

Hon. David Elliot, J.S.C. of Queens County Supreme Court granted FKB's motion to dismiss a legal malpractice action against our client, a personal injury attorney, in connection with his representation of the plaintiff in connection with damages he allegedly sustained in a 2002 motor vehicle accident.

The defendants in the underlying personal injury action moved for summary judgment on the ground that the plaintiff did not sustain a "serious injury" within the meaning of New York Insurance Law §5102(d), thereby precluding plaintiff from recovering damages. While our client opposed the defendants' motion, said motion was granted and the plaintiff's action was dismissed. The plaintiff subsequently brought a legal malpractice action, alleging that his former attorney failed to properly oppose the summary judgment motion, resulting in the dismissal of the underlying action. FKB made a pre-answer motion to dismiss the legal malpractice action on the ground that the plaintiff could not prove the "case-within-a-case" and establish that "but for" the alleged malpractice, the client in the underlying mater would have achieved a different result. In response, the plaintiff cross-moved for partial summary judgment on the issue of legal malpractice liability.

In dismissing the legal malpractice action and denying the plaintiff's cross-motion, Justice Elliot fully agreed with FKB's argument that the motion for summary judgment in the underlying action was granted due to the lack of objective evidence establishing that plaintiff sustained a "serious injury," and not due to any action or inaction by the defendant attorney. Justice Elliot additionally agreed with FKB's argument that the affirmation of the plaintiff's attorney and an expert attorney, submitted in opposition to FKB's motion to dismiss, failed to demonstrate that the defendants in the underlying action were not entitled to summary judgment. Moreover, Justice Elliot found that, contrary to the plaintiff's contention, even if the defendant attorney opposed the summary judgment motion with sworn reports of the plaintiff's treating physicians, such medical evidence would have been insufficient to establish that the plaintiff sustained a "serious injury" within the meaning of New York Insurance Law §5102(d). 

FKB's Joshua Sandberg prepared the winning motion papers.

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