There can be no more classic case in legal malpractice than that of a passenger who is injured in a car accident, whose attorney fails to start the case. Nevertheless, Atiencia v Pinczewski, 2017 NY Slip Op 01839 Decided on March 15, 2017 Appellate Division, Second Department was dismissed in Kings County.
The Appellate Division could hardly have spent less time reversing. “Here, the defendants failed to establish, prima facie, that the plaintiff could not prove that, in failing to commence a timely action against Palaquibay, the defendants failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, or that the breach of this duty was the proximate cause of the plaintiff’s alleged damages (see Rojas v Paine, 125 AD3d at 746; Velie v Ellis Law, P.C., 48 AD3d 674, 675; see also Kempf v Magida, 116 AD3d 736, 736-737; Gershkovich v Miller, Rosado & Algios, LLP, 96 AD3d 716, 717; cf. Tooma v Grossbarth, 121 AD3d 1093, 1095-1096). Furthermore, contrary to the Supreme Court’s determination, the defendants failed to establish, prima facie, that the plaintiff did not sustain “actual and ascertainable damages” as a result of the defendants’ failure to commence a timely action against Palaquibay (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442; see Suydam v O’Neill, 276 AD2d at 550; cf. Walker v Glotzer, 79 AD3d 737, 738-739). Accordingly, the court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the cause of action to recover damages for legal malpractice.”