Seriously

The New York Appellate Division for the Second Judicial Department reversed an order denying summary judgment to a law firm sued for legal malpractice

On February 24, 2013, the plaintiff Vasilje Dodenc (hereinafter the injured plaintiff), a pedestrian, allegedly was injured when he was struck by a vehicle. The injured plaintiff and his wife, the plaintiff Elizabeth Dodenc, retained the defendant to commence an action, inter alia, to recover damages for personal injuries against the owner and operator of the vehicle. By order dated January 18, 2018, the Supreme Court granted a motion by the owner and operator of the vehicle for summary judgment dismissing the complaint on the ground that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident.

In June 2020, the plaintiffs commenced this action, among other things, to recover damages for legal malpractice, alleging that the defendant was negligent in its representation of the plaintiffs in the underlying personal injury action. The defendant moved for summary judgment dismissing the complaint. In an order entered December 6, 2021, the Supreme Court, inter alia, denied that branch of the defendant’s motion which was for summary judgment dismissing the cause of action alleging legal malpractice. The defendant appeals.

Held

Here, in support of its motion, the defendant submitted evidence demonstrating that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident. The defendant thus established, prima facie, that the plaintiffs would not have succeeded on the merits of the underlying personal injury action (see Verdon v Duffy, 120 AD3d 1343, 1344; cf. Detoni v McMinkens, 147 AD3d 1018, 1020). In opposition, the plaintiffs failed to raise a triable issue of fact.

(Mike Frisch)