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Verdon v. Duffy
Factual and Procedural Background
The plaintiff, Catherine Verdon, retained the defendants to commence an action to recover damages for personal injuries allegedly sustained in an automobile accident. The defendant in the underlying personal injury action moved for summary judgment dismissing the complaint on the ground that the plaintiff did not suffer a serious injury as defined by Insurance Law § 5102(d). While that motion was pending, the plaintiff accepted a settlement offer. Subsequently, the plaintiff commenced this legal malpractice action against her attorneys, alleging negligence in their representation that caused her to settle for less than the fair value of her case. The defendants moved for summary judgment dismissing the complaint, and the Supreme Court, Westchester County, granted the motion. The plaintiff appeals from that order.
Legal Issues Presented
- Whether the defendants failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession in representing the plaintiff in the underlying personal injury action.
- Whether the plaintiff can prove that she would have succeeded on the merits of the underlying personal injury action but for the defendants' alleged negligence.
- Whether the defendants are entitled to summary judgment dismissing the legal malpractice complaint based on the plaintiff's inability to establish at least one essential element of her cause of action.
Arguments of the Parties
The opinion does not contain a detailed account of the parties' legal arguments.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Di Giacomo v. Langella, 119 A.D.3d 636, 990 N.Y.S.2d 221 | Elements of legal malpractice: attorney's failure to exercise reasonable skill and proximate cause of damages; requirement to prove success on the merits but for negligence. | Used to establish the standard for legal malpractice and the burden on the plaintiff to demonstrate both breach and causation. |
| Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 835 N.Y.S.2d 534, 867 N.E.2d 385 | Definition of attorney's duty to exercise ordinary reasonable skill and knowledge. | Quoted to define the standard of care required of attorneys in malpractice claims. |
| Dempster v. Liotti, 86 A.D.3d 169, 924 N.Y.S.2d 484 | Requirement that plaintiff plead and prove actual, ascertainable damages from attorney's negligence. | Applied to emphasize the necessity of proving damages resulting from the alleged malpractice. |
| Boglia v. Greenberg, 63 A.D.3d 973, 882 N.Y.S.2d 215 | Standard for granting summary judgment in legal malpractice actions. | Used to establish that defendants must show plaintiff cannot prove an essential element of the malpractice claim to obtain summary judgment. |
| Porello v. Longworth, 21 A.D.3d 541, 799 N.Y.S.2d 918 | Attorney's exercise of proper care, skill, and diligence in advising settlement. | Applied to conclude defendants exercised the requisite standard of care in advising settlement acceptance. |
Court's Reasoning and Analysis
The court analyzed the elements required to sustain a legal malpractice claim, emphasizing that the plaintiff must prove both the attorney's failure to exercise reasonable skill and that the negligence proximately caused actual damages by demonstrating she would have succeeded on the underlying claim absent the negligence. The defendants established prima facie that the plaintiff would not have succeeded on the merits of the underlying personal injury action because there was insufficient evidence she sustained a serious injury under Insurance Law § 5102(d). Consequently, the defendants demonstrated they met the standard of care in advising the settlement, negating the claim of malpractice. The plaintiff failed to raise any triable issue of fact in opposition. Therefore, the Supreme Court properly granted summary judgment dismissing the complaint.
Holding and Implications
The order of the Supreme Court granting summary judgment dismissing the legal malpractice complaint is affirmed.
The direct effect of this decision is the dismissal of the plaintiff's legal malpractice claim against the defendants. The court found no negligence on the part of the defendants and no genuine issue of material fact to warrant trial. The opinion does not establish any new precedent beyond applying established legal standards to the facts of this case.
PETER B. SKELOS
Affirmed.
Harry I. Katz, P.C. (Shayne, Dachs, Sauer & Dachs, LLP, Mineola, N.Y. [Jonathan A. Dachs], of counsel), for appellant. Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, N.Y. (Daniel G. Ecker of counsel), for respondents.
In an action to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Westchester County (Tolbert, J.), entered July 3, 2012, which granted the defendants' motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, with costs.
The plaintiff retained the defendants to commence an action to recover damages for, inter alia, personal injuries that she allegedly sustained in an automobile accident. The defendant in the underlying personal injury action moved for summary judgment dismissing the complaint, on the ground that the plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. While that motion was pending, the plaintiff accepted a certain sum of money to settle the action.
The plaintiff subsequently commenced this action against her attorneys to recover damages for legal malpractice. The plaintiff alleges that the defendants were negligent in their representation of her in the underlying personal injury action, in that they caused her to settle that action for far less than the fair value of her case. The defendants moved for summary judgment dismissing the complaint. The Supreme Court granted the motion.
“To sustain a cause of action alleging legal malpractice, a plaintiff must establish that the attorney ‘failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession,’ and that the attorney's breach proximately caused the plaintiff actual and ascertainable damages” ( Di Giacomo v. Langella, 119 A.D.3d 636, 637, 990 N.Y.S.2d 221, quoting Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385). “Even if a plaintiff establishes the first prong of a legal malpractice cause of action, the plaintiff must still demonstrate that he or she would have succeeded on the merits of the action but for the attorney's negligence” ( Di Giacomo v. Langella, 119 A.D.3d at 638, 990 N.Y.S.2d 221). “ ‘[A]s to [this] second prong, the plaintiff must plead and prove actual, ascertainable damages as a result of the attorney's negligence’ ” ( id., quoting Dempster v. Liotti, 86 A.D.3d 169, 177, 924 N.Y.S.2d 484).
“ ‘To obtain summary judgment dismissing a complaint in an action to recover damages for legal malpractice, a defendant must demonstrate that the plaintiff is unable to prove at least one of the essential elements of [his or her] legal malpractice cause of action’ ” ( Di Giacomo v. Langella, 119 A.D.3d at 638, 990 N.Y.S.2d 221, quoting Boglia v. Greenberg, 63 A.D.3d 973, 974, 882 N.Y.S.2d 215).
Here, in support of their motion for summary judgment dismissing the complaint, the defendants 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, skill, and diligence commonly possessed by a member of the legal community” ( Porello v. Longworth, 21 A.D.3d 541, 541, 799 N.Y.S.2d 918) when they advised her to accept a settlement offer in the sum that she ultimately accepted. In opposition, the plaintiff failed to raise a triable issue of fact.
Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.
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