As cases become problems, or as basic problems become more prominent in litigation cases, one offshoot is that litigants take it into their own hands to try to remedy the situation. Whylie v Pager 2013 NY Slip Op 50601(U) Decided on April 18, 2013 Supreme Court, Kings County
Schack, J. is just such a case. She claimed injury, and retained defendants to represent her. No medical expert was obtained, and her case was dismissed. We’ll let Judge Schack take it from here:
"Defendants, in the underlying action, moved for summary judgment and dismissal of plaintiff WHYLIE’s complaint, claiming absence of medical causation. This was supported by defendants’ medical experts. Defendant PAGER opposed the summary judgment motions, but lacked an expert willing to causally relate the May 3, 2001-incident to the injuries and symptoms claimed by plaintiff WHYLIE. Plaintiff WHYLIE’s treating physician, Dr. Denise Harrison [exhibit A of motion], opined that "a careful review of the literature found no definitive link between the chemicals she was exposed to and her complaints." Further, Dr. Harrison reported that "Ms. Whylie was also evaluated by a neurologist and it was determined that her symptoms had no neurological etiology and was thought to have a psychotic disorder."
In her decision and order of November 7, 2008 in the underlying action, Justice Yvonne Lewis granted defendants’ motions for summary judgment for lack of medical causality and dismissed plaintiff WHYLIE’s complaint. Plaintiff WHYLIE, appearing pro se, appealed Justice Lewis’ decision and order. The Appellate Division, Second Department unanimously affirmed Justice Lewis, on December 7, 2010"
Plaintiff WHYLIE, after her dismissal of defendant PAGER, brought numerous applications to Supreme Court, Kings County, in the underlying dismissed action. In one of her affidavits, plaintiff WHYLIE acknowledged that defendant PAGER stopped representing her on November 8, 2008 [exhibit F of motion].
Then, on December 30, 2011, more than three years after PAGER ceased to represent WHYLIE, plaintiff WHYLIE commenced the instant legal malpractice action against defendant PAGER, claiming that in the underlying action, defendant PAGER committed legal malpractice and breach of contract. Plaintiff WHYLIE demanded judgment of $1,000,000 for compensatory damages and $1,000,000 for punitive damages."
It is clear that plaintiff WHYLIE failed to allege or demonstrate how defendant PAGER failed to exercise "the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession" and how this alleged breach of duty "proximately caused the plaintiff to sustain actual and ascertainable damages." (See Olaiya v Golden, 45 AD3d 823, 823-824 [2d Dept 2007]; Mourtil v Korman & Stein, P.C., 33 AD3d 898, 899 [2d Dept 2006]; Avery v Sirlin, 26 AD3d 451 [2d Dept 2006]; Natale v Samel & Assoc. (308 AD2d 568, 569 [2d Dept 2003]). The underlying action was dismissed because defendants established their entitlement to judgment as a matter of law. Defendants’ evidence demonstrated the absence of medical causality between the May 3, 2001-incident and the damages claimed. Plaintiff WHYLIE, in the underlying action, had no medical evidence to respond with or counter defendants’ arguments. Moreover, plaintiff WHYLIE fails to allege that the underlying action was meritorious or that it would have been successful. "
"Further, the instant summons with notice was filed on December 30, 2011, more than three years after November 8, 2008, the final date of defendant PAGER’s representation of plaintiff WHYLIE. As noted above, in Tsafatinos v Lee David Auerbach, P.C., plaintiff WHYLIE’s breach of contract claim is duplicative of malpractice and therefore subject to the same three-year statute of limitations as the malpractice claim. (CPLR § 214 )."