Sure, the attorney made mistakes.  Heck, the mistakes were so bad the Court “excoriated” him.  Good enough yet?  Nope. U Joon Sung v Park  2019 NY Slip Op 30107(U)  January 11, 2019
Supreme Court, New York County  Docket Number: 159279/2015 Judge: Kathryn E. Freed shows that departure is merely the first step in a 4-step dance.  Next?  Proximate cause and “but for” causation.  In a Motor Vehicle setting that means that “serious injury” within the meaning of the Insurance Law has to be shown.

“In this legal malpractice action, plaintiff U loon Sung moves, pursuant to CPLR 3212, for summary judgment on the issue of defendants Andrew I. Park, Esq., Sim & Park, LLP, and Andrew Park, P.C.’s liability for their failure to duly prosecute his claims in an underlying personal injury action. After oral argument, and after a review of the parties’ papers and the relevant statutes and caselaw, it is ordered that the motion is denied. ”

” In the earlier of the two decisions, this Court denied plaintiffs motion to vacate a dismissal of an
underlying personal injury action styled U Joon Sung v Feng Ue Jin, Supreme Court, Queens County Index Number 24966/09 (“the underlying action”). (Doc. 44.) Defendants herein
represented plaintiff in that matter. (Doc. 46 at 3-4.) In refusing to vacate the default, this Court
excoriated defendants’ “overall lack of diligence in prosecuting [plaintiffs] case” (Doc. 44 at 5),
and also noted that they failed to demonstrate a meritorious cause of action on behalf of plaintiff
by not “submit[ting] any competent medical evidence” (id.). This decision was appealed and
subsequently upheld by the Second Department by an order issued on April 1, 2015. (Doc. 45.) ”

“Plaintiffs primary argument in moving for summary judgment against defendants is that,
“given the underlying liability involved a rear-end collision which occurred while [he] was at a
complete stop … he would have prevailed in the underlying action” but for defendants’ negligence
in failing to prosecute his action. (Doc. 41 at 6.) Plaintiff cites Insurance Law§§ 5102(a) and
5104(a) in support of his underlying injury action.

This Court determines that summary judgment must be denied because plaintiff has failed
to establish his prima facie showing that he would have prevailed on the merits of his underlying
Insurance Law§§ 5102(a) and 5104(a) claims but for the defendants’ negligence.§ 5102(a) merely
provides the statutory definition for “basic economic loss” for Article 51 of the Insurance Law.
(See Insurance Law§ 5102[a].) § 5104(a) is limited only to claims that involve a “serious injury.”
(See McLoyrd v Pennypacker, 178 AD2d 227, 227 [I st Dept 1991] (“With the adoption of no-fault
insurance in this State, the Legislature has sought to remove from the judicial arena litigation
involving all claims save those involving the most serious physical injury.”).) “In order for a nonpermanent injury to be considered ‘serious’ … there must be a medical determination as to the
extent of the injury and its adverse impact on the injured party’s ability to perform his usual and
customary daily activities.” (Id.) ”

“In a similar vein, plaintiff’s evidence on the motion does not eliminate triable issues of fact.
Although defendant Park-admitted at his deposition that he understood that the underlying case
was dismissed due to his. failure to prosecute plaintiffs action (Doc. 58 at 5-6), plaintiff has not
shown that he would have established that he sustained a “serious injury” had the case gone
forward. Finally, while plaintiff submits the reports of two witnesses, those experts only made
conclusions as to plaintiffs lost wages due to the accident and are not dispositive on the issue of
liability. (Docs. 63-64.) Thus, summary judgment against defendants on plaintiffs claims for legal
malpractice is denied. “