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First Case:

Plaintiffs commenced a legal malpractice action seeking damages allegedly arising from defendant lawyer’s representation of them in a personal injuryaction. Defendant lawyer then filed a motion for summary judgment dismissing the complaint against him. On 6 August 2007, the Supreme Court of Monroe County issued an order granting the defendant’s motion. Thus, an appeal from the said order followed.

The court finds that the order so appealed from must be reversed on the law, without costs, the motion must be denied and the complaint against defendant lawyer must be reinstated.

Here, the Supreme Court erred in granting the motion of defendant lawyer seeking summary judgment dismissing the complaint against him. While the court agrees with defendant lawyer that he met his initial burden on the motion by submitting evidence that he did not have an attorney-client relationship with plaintiffs, that he had no involvement in the personal injury action and he had no fee-sharing agreement with another defendant lawyer with respect to that action, however, plaintiffs raised a triable issue of fact, whether they indeed had an attorney-client relationship with defendant lawyer at the time of the alleged malpractice.

As a rule, an attorney-client relationship may exist in the absence of a retainer or fee and in determining the existence of an attorney-client relationship a court must look to the actions of the parties to ascertain the existence of such a relationship. The unilateral beliefs of plaintiffs, without more, do not render them the defendant lawyer’s clients.

In this case it must be noted that plaintiffs submitted evidence that defendant lawyer referred the personal injury action to another lawyer, and that plaintiffs met with that second lawyer in defendant lawyer’s office for the initial meeting and on another occasions as well; that defendant lawyer’s staff arranged for the initial meeting, that both lawyers met with plaintiffs during that meeting, and that, at the conclusion of the meeting, the second lawyer stated that they would call him if they were going to take the case; the affidavit of the second lawyer in which he stated that he had previously engaged in fee-sharing arrangements in several cases referred to him by defendant lawyer and that there was an oral agreement to split the fee with respect to the instant personal injury action, that defendant lawyer inquired with respect to the progress of the underlying action several times, and plaintiff testified at his deposition that the second lawyer informed him of that fact. Moreover, several of the pleadings or proposed pleadings in the personal injury action listed both lawyers as plaintiffs’ attorneys, and plaintiffs also submitted evidence establishing that the second lawyer sent defendant lawyer copies of certain of his correspondence with plaintiffs. Thus, for the foregoing reasons, the court finds that the evidence submitted in opposition to the motion raises a triable issue of fact whether there was an attorney-client relationship between plaintiffs and defendant lawyer.

Second Case:

On 2 October 1985, the Supreme Court at Special Term in Albany County dismissed petitioner’s application for the issuance of a motor vehicle operator’s license. Thus, an appeal from that judgment in a proceeding pursuant to CPLR Article 78 ensued, to review the determination of respondent refusing the license issuance and to annul such determination.

The primordial issue at bar is whether or not the Vehicle and Traffic Law, which prohibits respondent from restoring a driver’s license to a person who has been twice convicted of driving a motor vehicle while intoxicated or DWI where personal injury was involved, is applicable when the injuries are relatively minor and sustained only by the person charged with driving while intoxicated.

As the statutes provide, the commissioner shall not issue a new license, nor restore the old, in any event, where a person has been twice convicted of driving a motor vehicle while intoxicated where personal injury has resulted from such driving while intoxicated.

Here, the court finds that the plain language of the statute supports respondent’s interpretation and is consistent with the policy embodied in the statute to remove from public highways those drivers, who have repeatedly manifested by their conduct of driving while intoxicated and being involved in accidents, serious enough to cause personal injury, that they are a hazard. The fact that petitioner fortuitously did not cause injury to anyone other than himself does not mitigate the fact that he has, on more than one occasion, been involved in an alcohol-related accident of such a magnitude that personal injury resulted. The State has a strong interest, in its battle against drunk drivers, to remove such individuals from its highways. Further, societal costs are incurred regardless of who is injured by the intoxicated driver.

Moreover, any personal injury regardless of the extent of such injury falls within the statutory meaning of personal injury. This is in harmony with both the statutory language and the policy concerns of the statute. Here, petitioner’s injuries required hospital care and included a lump on the head, abrasions, lacerations, momentary unconsciousness, limping and nausea. It is absurd to contend that these do not constitute personal injuries.

Furthermore, on petitioner’s additional claims that he was improperly denied a hearing and that respondent’s decision was improperly based on hearsay, the court finds them bereft of merit. Petitioner neither raised any factual issues nor did he request a hearing; and hearsay which, as here, is relevant and probative which can form the basis for an administrative determination.

Accordingly, the judgment is affirmed, without costs. Petitioner’s remaining arguments not raised are precluded from appellate review.

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