CASES, DECISIONS, REPORTS
The First Department,
in Caso v. Miranda Sambursky Sloane Sklarin Ver Veniotis LLP, held that the
complaint for legal malpractice brought by a former client against his lawyers
in a personal injury action stated a valid cause of action and should not have been
dismissed upon the law firm’s motion to dismiss the action.
Caso v Miranda Sambursky Sloane Sklarin Ver Veniotis LLP
2017 NY Slip Op 03607
[150 AD3d 422]
May 4, 2017
Appellate Division,
First Department
Published by New
York State Law Reporting Bureau pursuant to Judiciary Law §
431.
As corrected through
Wednesday, June 28, 2017
[*1] Thomas
Caso, Appellant,
v
Miranda Sambursky Sloane Sklarin Ver Veniotis LLP et al., Respondents.
v
Miranda Sambursky Sloane Sklarin Ver Veniotis LLP et al., Respondents.
Alexander J. Wulwick,
New York, for appellant.
Furman Kornfield &
Brennan LLP, New York (A. Michael Furman of counsel), for respondents.
Order, Supreme Court,
New York County (Carol R. Edmead, J.), entered May 26, 2016, which granted
defendants’ motion to dismiss solely to the extent of dismissing the complaint
for failure to state a cause of action, unanimously reversed, on the law,
without costs, and the motion denied in its entirety. Order, same court and
Justice, entered on or about October 31, 2016, which granted plaintiff’s motion
insofar as it sought leave to reargue defendants’ motion to dismiss, denied
plaintiff’s motion insofar as it sought leave to renew and to amend the
complaint, and, upon reargument of the motion to dismiss, adhered to the
original determination, unanimously reversed, on the law and the facts, without
costs, leave to amend the complaint granted, and the appeal therefrom otherwise
dismissed as academic.
In this legal
malpractice action, plaintiff, the victim of a hit-and-run accident, alleges
that defendants, who represented him in the underlying personal injury action,
were negligent in failing to prepare and present the testimony of the sole
eyewitness; that defendants’ negligence caused a verdict against him; and that
he sustained actual damages. Specifically, plaintiff alleges that, prior to the
eyewitness’s deposition testimony two years after the accident, defendants
failed to refresh the eyewitness’s memory by showing him the police record of a
phone call he made shortly after the accident, in which he described the
hit-and-run vehicle as a green garbage truck with a flat front. The eyewitness
then testified to the contrary at his deposition, stating that the garbage
truck he remembered fleeing the scene had a round front, not a flat front. Plaintiff
alleges that but for defendants’ negligence in handling the key witness in his
case, he would have prevailed, as the driver operated a green garbage truck
with a flat front, and the driver had already admitted to a route that would
have placed him at the scene on the day and time of the accident. These
allegations are sufficient to survive a CPLR 3211 (a) (1) and (7) motion to
dismiss, as nothing in the record conclusively establishes a defense as a
matter of law (see Leon v Martinez, 84 NY2d 83, 87-88 [1994]) and
plaintiff has adequately pleaded a claim for legal malpractice (see Global Bus.
Inst. v Rivkin Radler LLP, 101 AD3d 651,
651 [1st Dept 2012]; see also Rudolf
v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]).
[*2] Leave to
amend is proper, since plaintiff’s proposed amendments are not “patently devoid
of merit” and will not prejudice or surprise defendants (MBIA Ins. Corp.
v Greystone & Co., Inc., 74 AD3d 499,
499 [1st Dept 2010]; see CPLR 3025 [b]). Concur—Sweeny, J.P.,
Gische, Kahn and Gesmer, JJ.
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copyr. 2017 Richard A. Klass, Esq.
The firm's website: www.CourtStreetLaw.com
Richard A. Klass, Esq., maintains a law firm engaged in civil litigation in Brooklyn Heights, New York.
He may be reached at (718) COURT-ST or e-ml to RichKlass@courtstreetlaw.com with any questions.
Prior results do not guarantee a similar outcome.
