We often see a "pot and the kettle" issue in legal malpractice cases. Example: Plaintiff trips and falls, and her attorney sues the City. City successfully shows that it had no big apple notice, and that it did not create the defect in the street. Plaintiff then sues in legal malpractice arguing that photos show that other construction entities were involved, and that attorney departed when he did not sue those entities. Plaintiff criticizes attorney for not doing thorough investigation. It later turns out that not only the two construction companies shown in the photo were working there, but others were as well. Legal malpractice case is lost on the same grounds as the underlying case. Ironic?
Dalewitz v Gropper 2014 NY Slip Op 30892(U) April 7, 2014 Supreme Court, New York County
Docket Number: 100198/2007 Judge: Jeffrey K. Oing leads us to this conclusion. In order to avoid "speculation" you must cover all the bases. "In bringing the instant action, plaintiff contends that
defendant committed legal malpractice because he sued the City, when Empire City Subway ("ECS") and/or Consolidated Edison ("Con Ed") may have been the responsible parties. Plaintiff bases her claim on the fact that attached to the complaint in the underlying action were two photographs of the accident site (Klein Affirm., Ex. P). According to plaintiff, a review of the
two photographs reveals the letters "CS" spray-painted on the roadway and a metal plate in the crosswalk with the letters "ECS" etched onto the plate. Another photograph of the accident scene
shows a barricade with the letters "ECS" stenciled across it (Id., Ex. Q).
Plaintiff ‘s claim is simply too speculative and attenuated. The record indicates that no fewer than four different entities were issued permits to open the roadway at or near the intersection, and plaintiff’s inability to identify which of these entities was responsible for or created the depression renders her contentions entirely conjectural. Additionally, the record does not support a finding that the depression in t.he crosswalk constitute an actionable, dangerous condition. Plaintiff’s testified at her EBT in underlying action that she was unsure if she actually fell or just twisted her ankle, that she did not know whether her foot was partially or completely in the depression at the time her ankle twisted, and that she did not even know if her foot got "caught" in the depression.
Moreover, plaintiff fails to raise a triable issue of fact. Instead, rather than proffer sufficient evidentiary proof, plaintiff s attorney argues that, "upon information and belief," ECS and Con Ed are responsible for the alleged defect. Her arguments are based entire on speculation and conjecture and are insufficient to preclude a finding of summary judgment in favor of defendant."