Legal Malpractice

Plaintiff Loses Case, then Loses Legal Malpractice Case

By (Andrew Lavoott Bluestone)

The outcome in this case is not unique; many legal malpractice cases are dismissed prior to trial, often on the basis that there is no "proximate cause" or "there is documentary evidence that plaintiff cannot prove the underlying case."  Terrance Wray, appellant, v Mallilo & Grossman, etc., respondent.SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT2008 NY Slip Op 6557; 2008 N.Y. App. Div. LEXIS 6403 is another example.  What the decision does not address is whether the attorney's underlying representation led to the conclusion that there was no 240 or 241 case.

"Here, the defendant met its prima facie burden of establishing entitlement to judgment as a matter of law by demonstrating that the plaintiff would be unable to prove that, but for any negligence on its part, he would have prevailed in the underlying action to recover damages against [*2] the premises owner under the Labor Law §§ 240(1) and 241(6) causes of action. In opposition, the plaintiff failed to raise a triable issue of fact. In the underlying action, the Supreme Court determined that the facts and circumstances giving rise to the plaintiff's accident were insufficient as a matter of law to sustain a claim under the Labor Law §§ 240(1) or 241(6). Accordingly, the plaintiff is collaterally estopped from relitigating those claims in the context of this legal malpractice [**3] action (see Sutton v Ezra, 224 AD2d 517, 638 N.Y.S.2d 148; Geraci v Bauman, Greene & Kunkis, 171 AD2d 454, 455, 567 N.Y.S.2d 36)."
 

Full post as published by New York Attorney Malpractice Blog on August 19, 2008 (boomark / email).