Oral argument sometimes drifts to the “analogy” stage, where an example must be used in order to show the simplest type of legal malpractice case.  It is often the particular fact pattern found in Detoni v McMinkens  2017 NY Slip Op 01334  Decided on February 22, 2017  Appellate Division, Second Department.

“On November 19, 2005, the plaintiff allegedly sustained serious injuries as a result of a motor vehicle accident in Queens. She allegedly retained the defendants on December 15, 2005, to represent her in a personal injury action against the owner and operator of the motor vehicle that struck her vehicle, but the defendants failed to commence an action before the expiration of the statute of limitations. The plaintiff commenced this action, inter alia, to recover damages for legal malpractice. ”  For the legal malpractice example one need only add that she was in the rear seat, and the car was stopped at a red light.  What is possibly left for defendant to argue?

“The defendants moved for summary judgment dismissing the complaint on the ground that, even if they were negligent in failing to timely commence the underlying personal injury action, the plaintiff would not have prevailed because she did not sustain a serious injury within the meaning [*2]of Insurance Law § 5102(d) as a result of the accident. In an order dated March 5, 2014, the Supreme Court granted the defendants’ motion for summary judgment dismissing the complaint.”

This issue bedeviled Supreme Court.  First it found for the attorneys on summary judgment and then it reversed itself and found against the attorneys on summary judgment.

“Upon reargument, the Supreme Court properly denied the defendants’ motion for summary judgment dismissing the complaint. The defendants failed to establish, prima facie, that the plaintiff did not sustain a serious injury under the 90/180-day category of Insurance Law § 5102(d) (see Cross v Labombard, 127 AD3d 1355, 1357; Poole v State of New York, 121 AD3d 1224, 1225). Among other things, the defendants submitted the plaintiff’s deposition testimony that, after the accident, she was confined to bed for two months and she was out of work for approximately 10 months (compare Lanzarone v Goldman, 80 AD3d 667, 669, with Bacon v Bostany, 104 AD3d 625, 628). Thus, the defendants failed to establish, prima facie, that, even if they were negligent in failing to timely commence the underlying personal injury action, the plaintiff would not have prevailed on the underlying cause of action. Since the defendants failed to meet their prima burden, it is unnecessary to consider whether the plaintiff’s opposition papers were sufficient to raise a triable issue of fact (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).”