We don’t understand why, but in Hashmi v Messiha ; 2009 NY Slip Op 06665 ; Decided on September 22, 2009 ; Appellate Division, Second Department the court places great weight on a mix-up between brothers. The basic claim is that plaintiff asked his attorneys to make a motion to dismiss would undoubtedly be successful. They didn’t do it as quickly as he would have liked. Here’s the story:
"almost immediately after the appellant was retained, but prior to November 7, 2005, the individual plaintiff, Imaduddin Syed Hashmi (hereinafter Hashmi) requested that Patricia E. Permakoff, the attorney assigned by the appellant to defend him, make a motion to dismiss the complaint in the medical malpractice action insofar as asserted against him on the ground that he never physically worked at the Hospital, but she allegedly refused to do so. Significantly, Hashmi does not deny that he was aware, prior to consulting with Permakoff, that his brother, Kabeerudin Hashmi, was the physician who was actually present at the Hospital and treated Sahar, but that he did not inform her of that fact.
On November 7, 2005, approximately three weeks after the appellant assumed Hashmi’s defense in the medical malpractice action, the defendant New York Post published an article identifying Hashmi as the "Death Sentence Doc" in the underlying malpractice action.
Apparently the brother question was insufficient for the Appellate Division:
"The plaintiffs’ mere conclusory allegations as to Hashmi’s requests that Permakoff take certain actions, together with their failure to allege any knowledge by the appellant that the New York Post planned to publish an article in connection with this matter and their failure to immediately inform the appellant that it was Hashmi’s brother, Kabeerudin Hashmi, who was actually the physician present in the Hospital when Sahar was examined and treated, render the allegations in the complaint conclusory and speculative insofar as asserted against the appellant. The allegations are thus insufficient, as a matter of law, to show that the plaintiffs have a cause of action sounding in legal malpractice. Accordingly, the Supreme Court should have granted the appellant’s motion to dismiss the complaint insofar as asserted against it (see Wald v Berwitz, 62 AD3d 786; Riback v Margulis, 43 AD3d 1023; Hartman v Morganstern, 28 AD3d at 424).
Moreover, in any event, the plaintiffs’ allegations as to the consequences and damages flowing from the appellant’s alleged failure to accede to Hashmi’s request that Permakoff immediately move to dismiss the complaint in the medical malpractice action are also too speculative to permit a trier of fact to find that such failure caused "actual and ascertainable damages" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442) to them. "