The social policy behind limitations on legal malpractice undoubtedly arises from the fear that after every litigation, whether commercial, personal injury, matrimonial or patent, there might be a legal malpractice case.  Only strict rules (goes the fear) will keep this epidemic in rein.  So, Courts routinely scrutinize legal malpractice cases more rigorously than they do for other cases.  Agosta v Kuharski, Levitz & Giovinazzo, Esqs.  2015 NY Slip Op 50946(U)  Decided on June 19, 2015  Supreme Court, Richmond County  Minardo, J. may be a poster child for this fear.

“Plaintiffs retained KUHARSKI to represent them in an action to recover damages for personal injuries that they received after being struck by a vehicle when they were pedestrians on a roadway in Beach Haven, New Jersey. At the time of the incident, the operator of the motor vehicle was intoxicated and subsequently pleaded guilty to a number of violations associated with the accident. The case was filed by KUHARSKI in New Jersey Superior Court, Ocean County, New Jersey.

Plaintiffs allege that KUHARSKI was negligent because of its failure to prosecute a[*2]”Dram Shop” cause of action against the restaurant where the driver operator was served alcoholic beverages; that the firm did not include a cause of action for punitive damages against the driver in the complaint; that they were compelled to settle^[FN1] the matter (for an undisclosed sum) that was substantially less that would have been realized if the aforementioned claims had been included in the lawsuit; and that KUHARSKI allowed the time for pre-trial discovery to expire without conducting necessary discovery including the examination before trial of the operator.”

“It is clear that plaintiffs’ allegation that KUHARSKI failed to conduct pre-trial discovery in this case is baseless as KUHARSKI had, in fact, conducted the deposition of the operator of the vehicle on March 13, 2013 (A copy of the transcript of the examination before trial is attached to KUHARSKI’s moving papers). In their opposition to this motion, plaintiffs acknowledge that their contention that the deposition was not taken was “incorrect” without providing any explanation for this false allegation.

Also unfounded is plaintiff’s claim that a “punitive damages” cause of action against the operator of the vehicle should have been included in the complaint. In the State of New Jersey, in order “[T]o warrant a punitive award, the defendant’s conduct must have been wantonly reckless or malicious. There must be an intentional wrongdoing in the sense of an evil minded act’ or an act accompanied by a wanton and wilful disregard of the rights of another” (Nappe v. Anschelewitz, Barr, Ansell & Bonello, 97 NJ 37,49, 447 AD2d 1224 [1984]). Plaintiffs provide no information other than the operator had a Blood Alcohol Content of .12 at the time of the accident and that he subsequently pled guilty to driving while intoxicated. The operator testified that he stopped immediately after the accident; was not speeding; and was not drinking at the time of the accident. In addition, he testified as to the number of drinks that he had before the [*3]accident and when they were consumed. Plaintiffs fail to provide any evidence or other information to support any claim that the operator’s conduct was “wantonly reckless or malicious” as the mere fact that the operator was intoxicated is insufficient to support a punitive damages claim. In addition, plaintiffs neglect to provide any basis for their claim that a “Dram Act” cause of action should have been commenced against another proposed defendant.

Lastly, plaintiffs claim that they “were forced to settle for an amount far less than if the matter had been handled with the appropriate degree of professional competence”. Plaintiffs neglect to provide the Court with any information as to the injuries that they received from the accident and/or the amount that they received when the matter was settled. Although, plaintiffs are not required to establish that they actually sustained damages, they are required to plead allegations from which damages attributable to the defendant’s malpractice might be reasonably inferred (see Fielding v. Kupferman, supra.). As set forth above, plaintiffs have failed to establish that KUHARSKI failed to conduct pre-trial discovery or that KUHARSKI should have prosecuted a claim for punitive damages against the operator or a “Dram Shop” claim against the restaurant. As such, there is no basis for the Court to reasonably infer that plaintiffs were compelled to settle the action for less than fair value.

Accordingly, the motion of defendant KUHARSKI, LEVITZ & GIOVINAZZA, ESQS. to dismiss the complaint of plaintiffs JOSEPHINE AGOSTA and MICHAEL PIVARNICK, pursuant to CPLR 3211(a)(1) and (7), is granted.”