This is a case being heard in the Supreme Court of Kings County. The plaintiff in this case has moved for an order to renew a cross motion for summary judgment and upon that renewal to grant the summary judgment in favor of the plaintiff on the issue of liability against the defendants. The defendants have opposed this instant motion to renew the cross motion.
The plaintiff filed a summons and verified complaint on the 20th of November, 2007 alleging 27 allegations of fact to support a cause of action for legal malpractice by the defendants. The complaint alleges that the defendants are part of a firm that is licensed to practice law in the state of New York and had agreed to represent the plaintiff in a claim for damages for personal injuries that were sustained on the 23 of July, 2003. The defendants allegedly failed to file the necessary law suit papers within the time period required by the statutes. This prevented the plaintiff from being able to recover damages for her alleged injuries.
The defendants issued a motion on the 9th of September, 2009 for an order granting summary judgment in their favor and dismissing the complaint against them on the ground that the plaintiff had failed to prove a case of malpractice against them. The court denied this motion on the 30th of October, 2009.
The plaintiff by a cross-motion filed on the 9th of September, 2009 moved for an order granting a partial summary judgment in favor on liability. The court denied this cross motion on the tenth of November, 2009. The court denied the cross motion stating that the plaintiff had failed to demonstrate that she would have prevailed in the underlying case. This is the motion that the plaintiff is seeking to renew based on new evidence that has been obtained.
Court Discussion and Decision
The plaintiff has offered as new evidence records that allegedly show that a non-party group had opened the road where the accident occurred is not enough to make a prima facie case that the plaintiff would have prevailed in a medical malpractice lawsuit. Specifically, the new evidence that has been supplied by the plaintiff has failed to show that any of the obtainable defendants in a personal injury case for recovery had caused or had actual constructive notice of the condition that caused her accident.
The plaintiff has not provided the court with enough evidence to show that a medical malpractice suit would have been successful. Therefore, the plaintiff has failed to show that the failure of the defendants to file the necessary paperwork for her case prevented her from obtaining damages by the loss of a potential claim.
As the plaintiff has failed to make a prima facie case in the underlying personal injury action, the court does not have to consider whether or not there are triable issues of fact in regard to the breach of their duty causing the plaintiff to obtain damages. The cross motion for summary judgment by the plaintiff is denied.
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