Tort Law for Paralegals 6th edition. Chapter 12, Malpractice.

Verdon v Duffy, 120 A. D. 3d 1343, 993 N/Y. S. 2d 96 (2014)

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2012-09452 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department Verdon v. Duffy 120 A.D.3d 1343 (N.Y. App. Div. 2014) . 2014 N.Y. Slip Op. 6199 9 . 993 N.Y.S.2d 96 Decided Sep 17, 2014 2012-09452 Index No. 23435/09 The plaintiff retained the defendants to commence 09-17-2014 an action to recover damages for, inter alia, personal injuries that she allegedly sustained in an Catherine Verdon, appellant, v. M. Sean Duffy, et automobile accident. The defendant in the al., respondents. underlying personal injury action moved for Harry I. Katz, P.C. (Shayne, Dachs, Sauer & summary judgment dismissing the complaint, on Dachs, LLP, Mineola, N.Y. [Jonathan A. Dachs], the ground that the plaintiff did not suffer a serious injury within the meaning of Insurance Law $ of counsel), for appellant. Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, N.Y. (Daniel G. 5102(d) as a result of the subject accident. While that motion was pending, the plaintiff accepted a Ecker of counsel), for respondents. certain sum of money to settle the action. PETER B. SKELOS, J.P. The plaintiff subsequently commenced this action against her attorneys to recover damages for legal THOMAS A. DICKERSON malpractice. The plaintiff alleges that the LEONARD B. AUSTIN defendants were negligent in their representation of her in the underlying personal injury action, in COLLEEN D. DUFFY, JJ. that they caused her to settle that action for far less Harry I. Katz, P.C. (Shayne, Dachs, Sauer & than the fair value of her case. The defendants Dachs, LLP, Mineola, N.Y. [Jonathan A. Dachs], moved for summary judgment dismissing the of counsel), for appellant. complaint. The Supreme Court granted the motion. Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, N.Y. (Daniel G. Ecker of counsel), for 'To sustain a cause of action alleging legal respondents. malpractice, a plaintiff must establish that the attorney failed to exercise the ordinary reasonable DECISION & ORDER skill and knowledge commonly possessed by a In an action to recover damages for legal member of the legal profession,' and that the malpractice, the plaintiff appeals from an order of attorney's breach proximately caused the plaintiff the Supreme Court, Westchester County (Tolbert, actual and ascertainable damages" (Di Giacomo v J.), entered July 3, 2012, which granted the Langella, 119 AD3d 636, 637, quoting Rudolf v defendants' motion for summary judgment Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d dismissing the complaint. 438, 442). "Even if a plaintiff establishes the first prong of a legal malpractice cause of action, the ORDERED that the order is affirmed, with costs. plaintiff must still demonstrate that he or she would have succeeded on the merits of the action casetext Verdon v. Duffy 120 A.D.3d 1343 (N.Y. App. Div. 2014) but for the attorney's negligence" (Di Giacomo v skill, and diligence commonly possessed by a Langella, 119 AD3d at 638). " [A]s to [this] member of the legal community" (Porello v second prong, the plaintiff must plead and prove Longworth, 21 AD3d 541, 541) when they advised actual, ascertainable damages as a result of the her to accept a settlement offer in the sum that she attorney's negligence" (id., quoting Dempster v ultimately accepted. In opposition, the plaintiff Liotti, 86 AD3d 169, 177). failed to raise a triable issue of fact. " To obtain summary judgment dismissing a Accordingly, the Supreme Court properly granted complaint in an action to recover damages for the defendants' motion for summary judgment legal malpractice, a defendant must demonstrate dismissing the complaint. that the plaintiff is unable to prove at least one of the essential elements of [his or her] legal SKELOS, J.P., DICKERSON, AUSTIN and DUFFY, JJ., concur. malpractice cause of action" (Di Giacomo v Langella, 119 AD3d at 638, quoting Boglia v ENTER: Greenberg, 63 AD3d 973, 974). Aprilanne Agostino Here, in support of their motion for summary judgment dismissing the complaint, the defendants Clerk of the Court established, prima facie, that the plaintiff would not have succeeded on the merits of the underlying personal injury action, as there was insufficient evidence to establish that she sustained a serious injury within the meaning of Insurance Law $ 5102(d) as a result of the automobile accident. Consequently, the defendants also established that they did not "fail[ ] to exercise that degree of care