Hinshaw reports on Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 2007 WL 1213712 (N.Y. April 26, 2007)   We discussed this case last April.

"The New York Court of Appeals recently held that a client was entitled to recover attorneys’ fees and expert witness costs incurred when his attorney’s error forced him to appeal an adverse verdict and to try the case a second time. The client was entitled to recovery, notwithstanding that a successful settlement was obtained during the second trial.

While walking across a road, the client was struck and injured by an automobile whose driver was making a left turn. A traffic signal controlled the intersection in which the accident occurred. The client retained attorney Corker to sue the driver. At trial, there was conflicting testimony as to whether the client was in the crosswalk at the time of the accident. At Corker’s request, the trial court gave an instruction based on N.Y. Veh. & Traf. Law § 1151, which addresses intersections without operational traffic signals. Section 1151 provides that pedestrians have the right of way in crosswalks, but have a duty not to “suddenly leave a curb or other place of safety and walk or run into the path of a vehicle which is so close that it is impractical for the driver to yield.” A jury found the client and the driver each 50% at fault, and awarded damages of $255,000.

The client retained a new lawyer, who filed a motion to set aside the verdict on the ground that the jury should have been instructed based on N.Y. Veh. & Traf. Law § 1111, which applies to intersections controlled by traffic signals. Section 1111 provides that vehicles “must yield the right of way to other traffic lawfully within the intersection or an adjacent cross walk.” The trial court denied the motion, reasoning that the client’s initial counsel had requested an instruction based on N.Y. Veh. & Traf. Law § 1151. The appellate court reversed, ruling that the client was entitled to a new trial because instructing the jury based on § 1151 was an error, and it affected the jury’s assessment of the client’s fault.

A retrial resulted in a jury’s finding that the driver was solely at fault. Before the jury returned a verdict on damages, the parties settled for $750,000. The client then filed a legal malpractice action against his initial attorney, alleging negligence in requesting an instruction based on § 1151 rather than N.Y. Veh. & Traf. Law § 1111. As damages, plaintiff sought to recover: (1) the legal fees that he incurred in moving to set aside the verdict in the first case, and in appealing the verdict; (2) the expert witness fees that he incurred in the second trial; and (3) $190,000 as an amount representing interest that would have accrued had he obtained a $750,000 recovery in the first trial.

The trial court granted partial summary judgment in favor of plaintiff, ruling that he was entitled to recover $28,703.27 as reimbursement for the attorneys’ fees incurred in obtaining a new trial and the expert fees incurred in the second trial. The trial court denied the motion with respect to plaintiff’s claim for interest. An appellate court reversed, and reasoned that the client did not sustain any actual damages because he had obtained a substantial recovery in the second trial. The Court of Appeals of New York reinstated the trial court’s ruling. "