Motor Vehicle injuries are often a question of whether plaintiff suffered a "serious injury" within the meaning of the insurance Law.  A serious injury is defined as "death, dismbmberment, loss of an organ…"  Many a hurtful non-fracture does not qualify as a "serious injury" even though it is life-changing.  What does this mean for legal malpractice litigation afterwards?

Verdon v Duffy  2014 NY Slip Op 06199  Decided on September 17, 2014  Appellate Division, Second Department is an example of the "but for" bar to legal malpractice.  In a nutshell, even if one can show a departure from good and accepted practice, one must still show that if the departure had not been made there would have been a better/more favorable outcome.

"The plaintiff retained the defendants to commence an action to recover damages for, inter alia, personal injuries that she allegedly sustained in an automobile accident. The defendant in the underlying personal injury action moved for summary judgment dismissing the complaint, on the ground that the plaintiff did not suffer a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject accident. While that motion was pending, the plaintiff accepted a certain sum of money to settle the action.

The plaintiff subsequently commenced this action against her attorneys to recover damages for legal malpractice. The plaintiff alleges that the defendants were negligent in their representation of her in the underlying personal injury action, in that they caused her to settle that action for far less than the fair value of her case. The defendants moved for summary judgment dismissing the complaint. The Supreme Court granted the motion.

Here, in support of their motion for summary judgment dismissing the complaint, the defendants established, prima facie, that the plaintiff would not have succeeded on the merits of the underlying personal injury action, as there was insufficient evidence to establish that she sustained a serious injury within the meaning of Insurance Law § 5102(d) as a result of the automobile accident. Consequently, the defendants also established that they did not "fail[ ] to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community" (Porello v Longworth, 21 AD3d 541, 541) when they advised her to accept a settlement offer in the sum that she ultimately accepted. In opposition, the plaintiff failed to raise a triable issue of fact.

Accordingly, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint."