Legal Malpractice as an Unexplained Pain in the Neck
When clients depend upon the expertise of an attorney, and then end up with a bad result, they can successfully plead legal malpractice. Does a client settle the personal injury case or litigate on? Depending on how the attorney advises the client, there may or may not be legal malpractice. Here is an example.
Polanco v Greenstein & Milbauer, LLP 2012 NY Slip Op 04385, Appellate Division, First Department concerns a case in which plaintiff was struck in the neck by a piece of lumber. She alleged that the defendant was negligent in urging her to settle the case without a MRI and telling her that a MRI would not lead to a more favorable result. She settled the case for $ 20,000 only to find out later that she was permanently disabled.
"after settling the case for $20,000, she obtained an MRI showing a disc herniation that required surgical intervention; that she remains permanently disabled; that defendant's negligence proximately caused her to sustain damages by not gaining the fair value for her case; and that she would have been successful in the underlying action had defendants exercised due care. These allegations are sufficient to state a claim for legal malpractice (see Garnett v Fox, Horan & Camerini, LLP, 82 AD3d 435, 435 ; see generally Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083 , lv denied 6 NY3d 701 ). Plaintiff was not required to [*2]show a likelihood of success in the underlying action, but was "required only to plead facts from which it could reasonably be inferred that defendant's negligence caused [her] loss" (Garnett, 82 AD3d at 436). Plaintiff plead such facts. "