The New York Court system is Byzantine. There is Supreme Court, Civil Court, District Court, County Court, Surrogate’s Court, and so on. Where to bring an action? In Civil Court, of course, the upper limit of jurisdiction is $ 25,000. In Supreme Court, unlimited. Defendant attorneys here brought a car case in Civil court, and now have lost summary judgment on whether that was legal malpractice. Still to come? Whether there was proximate cause and whether plaintiff passed the car accident threshold. Ironicallythis case too ended up in Civil Court.
David v. Mallilo & Grossman, 300574 TSN 2006 ,decided: September 26, 2007
Judge Manuel J. Mendez ,NEW YORK COUNTY Civil Court
Judge Mendez
OPINION OF THE COURT
"Upon a reading of the foregoing cited papers on this motion for partial summary judgment on liability and this cross motion for summary judgment dismissing the complaint it is the decision and order of this court that the motion is granted to the extent of finding defendants negligent as a matter of law, the cross motion is denied.
FACTUAL BACKGROUND
Plaintiff brings this legal malpractice action against the defendants for their failure to file a summons and complaint in the Supreme Court of the State of New York, thereby depriving them of the ability to obtain a significant monetary amount In damages for the injuries they sustained in a motor vehicle accident on January 25, 2003.
Plaintiffs are husband and wife. On January 25, 2003 plaintiff Steven David was operating his motor vehicle in which plaintiff Rosalie David was a passenger. While their vehicle was stopped in traffic it was struck in the rear by another vehicle, causing their vehicle to strike the vehicle in front and allegedly causing Rosalie David serious physical injuries, requiring surgery. Mrs. David was taken by ambulance from the scene of the accident to a local hospital where she was treated at the emergency room and later released. She was given pain killers and told to visit with her physician. Since she was in pain she visited her orthopedist, Dr. Jacob Rozbruch, on January 28, 2003.
Dr. Rozbruch had seen Mrs. David for an injury she had sustained to her right shoulder on January 20, 2003, five days before the automobile accident, when she tripped and fell on her right shoulder. When she visited him on January 28, he ordered an MRI which revealed a "full thickness tear of the rotator cuff" in the right shoulder. He suggested surgery to repair the injury, which was performed on February 6, 2003.
Plaintiffs contacted defendants approximately one week after the accident and retained them to prosecute their claim. Defendants were aware of the injuries sustained by Mrs. David, of the need for surgery to repair the injury and of the actual surgery performed on February 6, 2003. Despite knowing this, defendants filed their summons and complaint on June 27, 2003 in the Civil Court County of New York, demanding $25,000.00 in damages, thereby limiting Mrs. David to a recovery of $25,000.00 or less for her injuries.
The mistake was discovered during the latter part of the year 2003 and in March of 2004 defendants made a motion in Supreme Court New York county to transfer the action to that court and to increase the demand to $1,000,000.00. The motion was denied by the Hon. Kibbie F. Payne by decision order dated May 14, 2004 in which he stated : "All of the facts on which plaintiff relies in support of the motion were known or available to plaintiff at the time the complaint was served. Thus, because plaintiff has failed to make a sufficient showing by explaining the delay in making the motion, or why the monetary jurisdiction of the Civil Court would be inappropriate under the circumstances, the application is denied . . . accordingly, the application is denied in all respects and the petition is dismissed without prejudice to renewal upon adequate papers." [see Exh D &E plaintiff’s papers]. Justice Payne’s decision was affirmed by the Appellate Division First Department by memorandum decision dated December 15, 2005 [ See Exh. F & G plaintiff’s papers].
Following the denial of the motion and affirmance of the decision, the automobile accident case was settled for $25,000.00. Plaintiffs started this legal malpractice action against defendants by filing a summons and complaint in Supreme Court State of New York, County of New York demanding $750,000.00 for plaintiff Rosalie David and $100.000.00 for Steven David, as the amounts they would have recovered in the automobile accident case if it had been filed in the proper court.
Plaintiffs now move for an order granting partial summary judgment, declaring defendants liable as a matter of law to plaintiffs for legal malpractice, and setting this case down for an immediate trial for the determination of damages. Defendants cross move for an order granting them summary judgment and dismissing plaintiffs complaint. Defendants assert in their motion that plaintiff Rosalie David did not sustain a serious physical injury under New York State Insurance Law § 5102 (d), because it cannot be ascertained if the rotator cuff tear was the result of the trip and fall on January 20, or the automobile accident on January 25, 2003."