We admit that this case has us a little confused.  In Pollan v Attie ;2011 NY Slip Op 51285 (U)decided on July 11, 2011 ;Supreme Court, Nassau County ; Marber, J. we see a plaintiff with a car accident personal injury case.  Attorney 1 stipulates to an arbitration with a high low.  It seems not to be arbitrated.  The court case is dismissed for failure to prosecute.  Attorney 2 is retained, more than a year later.  It is unclear whether he is retained to take over the car case or to sue attorney 1.  He does not restore the case, and eventually, he is sued. 
 

The kicker comes in the middle of the opinion, when the judge tells us that there was an arbitration award.  Because of this, all counts of the case are dismissed.  Question?  Why wasn ‘t the arbitration award part of the factual setting by the judge?

"With particular respect to the First cause of action, the Plaintiff alleges that due to the Defendant, Attie’s, malpractice, she "was caused to lose her right to recover" in the personal injury action (see Verified Complaint at ¶ 38). However, inasmuch as that action has proceeded to arbitration, which resulted in the Plaintiff receiving an award in connection thereto, the allegations contained in the within complaint are plainly contradicted by the record (Doria v. Masucci , 230 AD2d 764 [2d Dept. 1996], supra; Mayer v. Sanders, 264 AD2d 827 [2d Dept. 1999], supra). Moreover, given the Plaintiff’s arbitration award, the Plaintiff has suffered no damages proximately caused by the Defendant’s purported malpractice (Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438 [2007], supra).

Accordingly, the First cause of action is hereby DISMISSED. "