Trial/IS Index No. Motion No. Motion Date

Transcription

1 :... SHORT FORM ORDER SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NASSAU PRESENT: Hon. Burton S. Joseph Justice. PHYLLIS LEDER - against - Plaintiff ROBERT HOROWITZ, ESQ., STEVEN B. TANNNBAUM, ESQ., VICKI R. SILVER, ESQ. and HOROWITZ, TANNENBAUM & SILVER, P. Defendants. Trial/IS Index No. Motion No. Motion Date Par / & /15/2004 Papers Numbered Notice of Motion, Affirmation & Exhibits Anexed... Affirmation in Opposition... Reply Affirmation... Memorandum of Law Motion (seq. no. 2) by the attorney for the defendants for an Order pursuant to CPLR 3212 granting defendants summar judgment dismissing plaintiffs complaint or CPLR 3211(a)(5) dismissing plaintiffs complaint on the ground of collateral estopped is denied. Cross-motion (seq. no. 2) by the attorney for the plaintiff for an Order pursuant to CPLR 3212 granting summary judgment against defendants in favor of the plaintiff is denied. This is an action to recover damages for the alleged legal malpractice of the defendants.

2 ). The plaintiff contends that the defendants were negligent in their representation of the plaintiff in an underlying personal injury action entitled Phylls Leder v. United Parcel Service, Vincent Delfo and Kenneth Priefer, Supreme Cour, Nassau County, Index No /99 the underlying action More specifically, the plaintiff alleges that the underlying action which arose out of a motor vehicle accident, was improvidently settled for $ , that the defendants did not have the consent of the plaintiff to settle the underlying action for $ and that the defendants were negligent in failing to timely serve a supplemental Bil of Pariculars and CPLR (d) exchange concerning Dr. Brian Hainline, who had been treating the plaintiff. Defendants in the personal injury action in the underlying action conceded liability. The Bil of Pariculars dated November 22, 1999 claimed soft-tissue injures to the neck and back. Subsequent thereto, Dr. Hainline, the plaintiffs expert, a neurologist and pain management specialist issued a report that diagnosed post traumatic reflex sympathetic dystrophy (RSD). On Februar 1, 2002, a stipulation of settlement was placed on the record before the tral Judge. The plaintiff was not present in court when the settlement was placed on the record. Mr. Tanenbaum stated on the record that both the plaintiff and her parents had met with Mr. Tanenbaum and Mr. Horowitz for approximately two hours just one day prior to putting the settlement on the record and that the plaintiff and her parents gave their express authority to the settlement of the case for $ The Plaintiff alleges the initial malpractice was committed when defendants office failed to serve the medical report of Dr. Hainline, failed to serve an

3 expert witness response and failed to serve a supplemental Bil of Pariculars. A preclusion order was issued preventing Dr. Hainline from being called as a witness for the plaintiff. The attorney for the plaintiff has submitted an affdavit by a legal expert James Dowd, Esq., in which he opines that the defendants in the underlying personal injury action failed to properly prosecute the underlying personal injur action on behalf of the plaintiff. Attorney Dowd in his affdavit sworn to September 15, 2004, states as follows: "Specifically, the legal malpractice of the defendants consisted of their failure to comply with CPLR (d) and applicable cour rules and caselaw relative to the timely and proper disclosure of expert witness information and disclosure of narrative medical reports prior to trial, i.e. the reports of Dr. Brian Hainline that diagnosed RSD in the plaintiff. They also failed to supplement and/or amend plaintiffs bil of particulars in a proper and timely maner so as to allege and prove the RSD diagnosis and medical specials in excess of $ , both of which they were fully aware for over a year prior to their attempted, belated disclosures. That as a direct result of the failures and legal malpractice of the defendants, the plaintiff was precluded from producing Dr. Hainline and others from testifyng at tral, from proving the RSD injury and the medical specials in excess of $75,000.00; critical evidence as to the nature and extent of the plaintiffs injuries. Finally, attorney Dowd opines that the action had "a settlement value in excess of $ and the potential for a recovery from a jury significantly higher than that, perhaps in the many hundreds of thousands of dollars. On the other hand, Ms. Mar, an attorney for the defendant in the underlying action testified at her non-part deposition (pg 25, ) that regardless of the tral Judge ruling with regard to plaintiffs supplemental Bil of Pariculars and the testimony of Dr.

4 Hainline, the defendants would not have increased their offer above $ (Id., p. 22, 1.4-7). According to Ms. Mar, $ was the "maximum amount under any circumstances we would pay. " (Id., p. 24, ). Ms. Mar further testified that the information contained in the plaintiff s Supplement Bil of Particulars and CPLR (d) exchange was "not really significant in terms of her value of the case. (Id., p. 25, ). Plaintiff contends she told the defendants she would not accept the $ and desired to go to tral. (Plaintiff deposition pages 106; 115 and 132. The attorney for the defendant also contends that for the plaintiff to prevail she must establish that she would have achieved a greater result but for the alleged negligence of the defendants in the within action. The attorney for the defendants argue that even assuming Dr. Hainline was precluded from entirely testifyng as to his diagnosis ofrsd, that does not mean that plaintiff would have recovered in excess of $ at tral, but for the alleged negligence of the defendants. Defendants contend that Dr. Hainline expressed surrise about the activities of Ms. Leder as depicted on certain video tapes, since they were contrary to what the plaintiff had been representing she was able to do. Defendants further contend Dr. Hainline advised Mr. Tannenbaum that on cross-examination, he would have to testify that he could not rule out other causes for his RSD diagnoses. In order to allege a legal malpractice claim, a plaintiff must prove the defendant attorney; (1) failed to exercise that degree of care, skil and diligence commonly possessed by a member of the legal community; (2) that the attorney s negligence was a proximate cause of the loss sustained, that the plaintiff incured damages a direct result of the attorney s action; and (3) that the plaintiff would have been successful if the attorney had exercised due care. Zeitlin v.

5 ~~~ Greenberg, Margolis, Ziegler, Schwartz, Dratch, Fishman, Franzblau Falkin, P. 209 AD2d 510. A plaintiff must also plead and prove that he sustained actual and ascertainable damages proximately caused for the alleged negligence of the attorney. Mendoza v. Schlossman, 87 AD2d 606; Lauer v. Rapp, 190 AD2d 778; Murphy v. Stein, 156 AD2d 546 and McCoy v. Tepper 261 AD2d 592. There are issues of fact that preclude the granting of summar judgment to either part. See Hallock v. State 64 NY2d 224; Bauer v. Lyaren, 113 AD2d 913 and Fox v. Wiener Laces, Inc. 105 Misc2d 672. There being no opposition to defendant' s application granting summar judgment in favor of defendant Vickie R. Silver, Esq., the plaintiffs complaint is dismissed only as against defendant Vickie R. Silver, Esq.. ENTER: Dated: Mineola, New York November 3, 2004 COU Cj 1 u cou ff\ce. SS/) f..'s 0 :t'( C\'