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.  Today, we  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.

“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 iJI 5). Specifically, defendants failed to (I) inquire of Detective Greene to determine the steps taken in the police investigation of the criminal matter, and to obtain relevant police reports and 911 records; (2) visit the hospital to interview the treating physician regarding a list and location of plaintiff’s injuries in order to determine the direction of travel and mechanisms of injury of the offending vehicle; (3) photograph and examine the injury pattern on plaintiff; ( 4) obtain the medical reports of and interview the EMT responders; (5) retain clothing plaintiff wore at the time of the Accident, with which to match trace elements against an examination of the offending vehicle; ( 6) photograph, inspect, and diagram the accident scene at or near the time of the accident; (7) conduct a I 0-14 day surveillance of the accident location between 3 AM and SAM to identify all private garbage removal carting trucks passing through the area, and pursue the records, logs, data and information relating thereto; (8) canvass the area between West 50th through 55th Streets and 8th through 10th Avenues for the names of all garbage removal carters making pickups between 3 AM and 5 AM, and pursuing the records, logs, data and information relating thereto; (9) contact local media sympathetic to pedestrian safety issues to bring public attention to the accident and possibly locate additional eyewitnesses; (10) obtain legal process to obtain pickup logs from all garbage removal carters making pickups in the area showing which of their trucks were operating in the vicinity of the accident at the time of the accident; (11) determine the final destination for any suspect vehicle, and obtaining logs of the vehicles that used such facilities in the hours following the accident; (l2) create a photo-array showing the various truck models potentially involved in the accident, for examination by eyewitness early in the investigation when his memory was fresh; ( 13) and take such other steps necessary to investigate properly and diligently plaintiffs accident and identifying the driver and owner of the vehicle which struck and injured the plaintiff. Such failures, according to plaintiff, were the substantial cause of his non-recovery of damages for his injuries, and his lost of his chance of a better outcome of the underlying action; plaintiff would have recovered compensation and damages for his injuries but lost his trial based on the defense that Santos and his co-defendants were not the driver or owner of the offending vehicle, which was proximately caused by defendants’ failures to timely and properly investigate the accident. ”

“However, in light of the numerous documents and transcripts generated in the underlying action, to which plaintiff had full and complete access, the inquiry is whether plaintiff “has” a cause of action for legal malpractice.

Defendants’ alleged failure to interview the treating physician to determine the direction of travel and mechanisms of injury, examine the injury pattern on plaintiff, obtain the medical reports of and interview the EMT responders, and retain clothing plaintiff wore at the time of the Accident to match trace elements against an examination of the offending vehicle is insufficient to support any claim that such failures were a proximate cause of plaintiffs inability to recover for his injuries. These claims are speculative in nature, and plaintiff does not allege the manner in which any of such information would have revealed or confirmed the identity of offending vehicle. And, the EMT report bears no information on the identity of the offending vehicle. In the absence of any specific factual allegations demonstrating that, but for the defendant’s alleged failures, there would have been a more favorable outcome in the underlying action, these claims do not support a legal malpractice claim against defendants.

As to plaintiffs allegation that defendants failed to inquire of Detective Greene to
determine the steps taken in the police investigation of the criminal matter, and to obtain relevant
police reports and 911 records, the letters of July 30, 2007, August 13, 2007, and December 31,
2007 from defendants’ investigator indicate the numerous attempts the investigator made to
obtain such records and information from Detective Greene (who was initially on vacation and
then upon his return, failed to return the investigator’s phone calls). Defendants’ investigator
ultimately obtained Detective Green’s notes (i.e., DD5s) pertaining to the accident: Detective
Greene’s trial testimony of the steps undertaken in his investigation indicate that the sole eye witness to the accident, Arenas, saw a dark green truck without any writing on it hit the plaintiff; that during Detective Greene’s surveillance on Saturday to Sunday from 3:00 AM to 5:30 AM a week following the accident, he saw a dark-green garbage truck; he did not notice any writing on the truck, until he pulled alongside of it and saw “Vanguard Carting” lettering “very hard to see” (pp. 20-21). Such information is consistent with the information defendants’ obtained independently, that the offending vehicle was (allegedly) a green, Vanguard Carting truck. ”

“Further, while plaintiff alleges that defendants failed to create a photo array of various truck models potentially involved in the accident to refresh the memory of eyewitnesses early in the investigation, Detective Greene’s DDS dated September 6, 2007 (approximately 2 112 months after the accident) indicates that Arenas initiated a call to advise Detective Greene that he “recalled the garbage truck as having a ‘flat front’ cab area, meaning a newer type cab (driver/passenger area) as opposed to an older garbage truck with an engine block in front of the cab/driver/passenger area.” Plaintiff fails to allege that the failure to use such a photo array, under the circumstances, was a proximate cause of plaintiffs non-recovery of damages for his injuries. ”

“Therefore, based on the uncontroverted submissions, plaintiff does not have a legal malpractice claim against defendants. Further, plaintiff’s claim for further discovery was obviated by virtue of this Court’s directive that defendants make available for discovery and inspection their entire litigation file for purposes of opposing this motion.”