In a legal malpractice setting, Plaintiff’s motion for partial summary judgment almost never wins. U Joon Sung v Park 2020 NY Slip Op 01571
Decided on March 10, 2020 Appellate Division, First Department illustrates the problem. Although liability seems obvious, Plaintiff was unable to demonstrated, prima facie that he would have succeeded in proving a “serious injury” within the meaning of the insurance law.
“In this legal malpractice action, plaintiff failed to establish prima facie that, but for defendants’ alleged negligence in representing him in the underlying personal injury action, he would have prevailed in that action (see Brooks v Lewin, 21 AD3d 731, 734 [1st Dept 2005], lv denied 6 NY3d 713 ). The personal injury action, which alleged, as pertinent here, that plaintiff sustained economic loss greater than “basic economic loss” in a motor vehicle accident (see CPLR 5014[a]; 5012[a], [d]), was dismissed as abandoned pursuant to CPLR 3404, and plaintiff’s motion to vacate the dismissal was denied (U. Joon Sung v Feng Ue Jin, 127 AD3d 740 [2d Dept 2015]). However, in this action, plaintiff failed to prove as a matter of law that he sustained in excess of $50,000 in economic loss as related to the accident. While plaintiff claims he left the Marine Reserves due to the injuries he sustained, plaintiff testified that there were no physical requirements to his position and that he was able to perform all of his duties. Thus, his experts’ report estimating that he suffered economic loss in excess of $50,000 based on his remaining a Marine reservist for 20 or 30 years is speculative, as it relies on assumptions, rather than proven facts.”