Caso v Miranda Sambursky Slone Sklarin, Verveniotis LLP 2016 NY Slip Op 30965(U)
May 26, 2016 Supreme Court, New York County Docket Number: 159192/2015 Judge: Carol R. Edmead is an example of a fact studded complaint which alleges a cause of action, but then shreds under analysis by the Court. Was it because the wrong kind of expert was offered? Why should an expert be required at the CPLR 3211 stage of the proceedings? Is this a rule only for legal malpractice?
“Plaintiff Thomas Caso (“plaintiff’) alleges that on June 24; 2007, at approximately 4:45 a.m., he was hit by a truck in Manhattan and the driver of the vehicle left the scene. Within three weeks thereafter, plaintiff hired defendants as his attorneys to prosecute an action against responsible parties. On September 16, 2007, New York Police Department (“NYPD”) Detectives arrested Anibal Santos (“Santos”) as the driver of the hit-and-run accident, and closed its investigation. On September 20, 2007, defendants submitted a claim for benefits on plaintiffs behalf to the Motor Vehicle Accident Indemnification Corporation.
On October 8, 2007 the District Attorneys’ office declined to prosecute Santos.
Yet; defendants filed a complaint against, inter alia, Santos in the Bronx Supreme Court (the “underlying action”). After an eight-day jury trial, at which Santos and his co-defendants claimed that there was insufficient evidence that they were the owner/driver of the offending vehicle, a jury denied any recovery to plaintiff. Thereafter, this action for malpractice ensued, in which plaintiff claims that defendants’ failure to conduct a reasonable and prompt investigation of the accident by taking various, certain steps to correctly identify the driver, was a substantial contributing cause and substantial factor in plaintiffs non recovery of his damages. In support of dismissal, defendants argue that neither of plaintiffs malpractice claims sufficiently allege what actions or inactions form the basis of the alleged negligence, nor how said negligence caused plaintiffs losses. Plaintiff fails to allege any specific item of investigation that defendants failed to perform in the underlying action; or that defendants to the underlying action were incorrectly named. Plaintiffs inability to identify the “correct” party to the underlying action requires dismissal of the claim that defendants named the incon-ect party. ‘ And, the jury’s verdict does not mean that the incorrect parties were named, or that defendants were negligent in their prosecution of the case. Plaintiff also fails to plead that either of his theories ofliability was the “but for” proximate cause of his damages. Further, the record in the underlying action establishes that defendants fully investigated and prosecuted plaintiffs case, and that defendants undertook each of the investigative efforts that plaintiffs complaint now claims were not done. Plaintiffs claims amount to speculation and conjecture.”
“Such failures, according to plaintiff, were the substantial cause of his non-recovery of damages for his injuries, and his lost of his chance of a better outcome of the underlying action; plaintiff would have recovered compensation and damages for his injuries but lost his trial based on the defense that Santos and his co-defendants were not the driver or owner of the offending vehicle, which was proximately caused by defendants’ failures to timely and properly investigate the accident.
Accepting the above allegations as true, as this court must, it cannot be said that plaintiff failed to “allege” a cause of action for legal malpractice.”
“Plaintiffs reliance on the affidavit of an investigator is misplaced, as such investigator is not an attorney qualified to opine on the reasonable skill and knowledge commonly possessed by a member of the legal profession. Further, plaintiff cites no authority for the position that a law firm’s engagement of an independent investigation firm to assist in the preparation of a hit-and run investigation constitutes negligence. Therefore, based on the uncontroverted submissions, plaintiff does not have a legal malpractice claim against defendants. “