Caso v Miranda Sambursky Slone Sklarin, Verveniotis LLP   2016 NY Slip Op 30965(U)
May 26, 2016  Supreme Court, New York County  Docket Number: 159192/2015  Judge: Carol R. Edmead is an example of a well pled complaint which shreds at the CPLR 3211 stage.  Tomorrow, we will examine the underlying claimed departures and how the Court treated these claims.  Suggestion:  in no other area of the law are cases so closely examined at the pre-answer stage.

“Plaintiff Thomas Caso (“plaintiff’) alleges that on June 24; 2007, at approximately 4:45 a.m., he was hit by a truck in Manhattan and the driver of the vehicle left the scene. Within three weeks thereafter, plaintiff hired defendants as his attorneys to prosecute an action against responsible parties. On September 16, 2007, New York Police Department (“NYPD”) Detectives arrested Anibal Santos (“Santos”) as the driver of the hit-and-run accident, and closed its investigation. On September 20, 2007, defendants submitted a claim for benefits on plaintiffs behalf to the Motor Vehicle Accident Indemnification Corporation.

On October 8, 2007 the District Attorneys’ office declined to prosecute Santos.

Yet; defendants filed a complaint against, inter alia, Santos in the Bronx Supreme Court (the “underlying action”). After an eight-day jury trial, at which Santos and his co-defendants claimed that there was insufficient evidence that they were the owner/driver of the offending vehicle, a jury denied any recovery to plaintiff. Thereafter, this action for malpractice ensued, in which plaintiff claims that defendants’ failure to conduct a reasonable and prompt investigation of the accident by taking various, certain steps to correctly identify the driver, was a substantial contributing cause and substantial factor in plaintiffs non recovery of his damages. In support of dismissal, defendants argue that neither of plaintiffs malpractice claims sufficiently allege what actions or inactions form the basis of the alleged negligence, nor how said negligence caused plaintiffs losses. Plaintiff fails to allege any specific item of investigation that defendants failed to perform in the underlying action; or that defendants to the underlying action were incorrectly named. Plaintiffs inability to identify the “correct” party to the underlying action requires dismissal of the claim that defendants named the incon-ect party. ‘ And, the jury’s verdict does not mean that the incorrect parties were named, or that defendants were negligent in their prosecution of the case. Plaintiff also fails to plead that either of his theories ofliability was the “but for” proximate cause of his damages. Further, the record in the underlying action establishes that defendants fully investigated and prosecuted plaintiffs case, and that defendants undertook each of the investigative efforts that plaintiffs complaint now claims were not done. Plaintiffs claims amount to speculation and conjecture. In opposition, plaintiff argues that the documents submitted by defendant, such as affidavits, including those of persons Jacking personal knowledge, partial transcripts and other materials, do not constitute documentary evidence under CPLR 3211 (a)(l ). The motion is premature, in that full discovery, including documents, materials, and files in defendants’ possession relating to their representation of the plaintiff, is not complete. Further, plaintiffs complaint pleads the essential elements of a legal malpractice claim, which is amply supported by documents demonstrating the negligence which contributed to defendants’ loss of the underlying action. Plaintiff pleads no less than 12 specific failures ·and depaitures, and adds a 13th, the failure to have taken “other steps necessary to investigate properly and diligently Plaintiffs accident…, etc.” Plaintiff also pleaded causation, in that caselaw holds that the proximate test is satisfied where it is more likely so than not that a defendant’s professional negligence has deprived the plaintiff of a “substantial possibility” of a better outcome, or that professional negligence resulted in “some diminution” of plaintiffs chances of a better recovery.

In further opposition, plaintiff submits the affidavit Stephen Coulon, a purported expert in accident investigation, preparation and reconstruction. Coulon opines that defendants failed to identify the underlying defendants early September 2007 through FOIL requests, or in October 2007 when the District Attorney’s records became available after they declined to prosecute. ‘ Defendants then could have commenced the underlying action in November 2007 and availed themselves of additional disclosure devices. Defendants’ investigation, in large part, did not get done until 2009 and 20 I 0, and defendants’ interview of the sole eye witness and inquiries as to which private garbage collection companies operated in the subject area, did not occur until almost two years after the accident. Interviewing and then deposing the sole eyewitness Theodore Arenas (“Arenas”) in May and June 2009 were fatal to plaintiffs trial, as Arenas’s deposition testimony that the truck had a front-hooded engine conflicted with Arenas’s earlier, and more reliable account to NYPD that the truck had a “flat front cab”; the account of a fronthooded engine provided the prevailing defense to plaintiffs trial. Defendants failed to post flyers in the subject area seeking eyewitnesses or identify other garbage collectors with the similar territory until 2010, and there is no record of defendants authorizing their independent investigators to perform additional investigation. Also, defendants failed to conduct surveillance of the accident over the following consecutive 10 Sunday mornings to either identify additional potential hit-and-run suspects or to rule out any defense that different company committed the accident. ”

“Here, plaintiff alleged that defendants breached its duty to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession in that defendants “should have been aware of,” the NYPD and DA’s investigations and ultimate · decision to decline to prosecute Santos through October 8, 2007 (Complaint ¶ 15). ”

“Accepting the above allegations as true, as this court must, it cannot be said that plaintiff failed to “allege” a cause of action for legal malpractice. “