Practice point: Plaintiffs alleged that the underlying medical malpractice action as against the hospital was
voluntarily discontinued by the defendant attorneys due
to the defendants' legal malpractice. Defendants established, prima facie, that plaintiffs would
not have succeeded on the merits of their underlying action, regardless of whether
the defendants consented to the discontinuance. Defendants' submissions demonstrated that the hospital staff
involved in the underlying medical procedures properly carried out the
directions of the attending private physicians and did not engage in any
independent negligent acts. In opposition, plaintiffs failed to raise a triable issue as to whether the
alleged legal malpractice was a proximate cause of the
plaintiffs' failure to recover against the hospital.
Plaintiffs also alleged that, in the underlying action, the complaint as against the other defendants, was dismissed due to defendants'
failure to prosecute the action. Defendants established, prima facie, that their alleged
negligence in failing to prosecute the action was not a proximate cause
of the damages alleged in the complaint since plaintiffs chose not
to appeal from the order that dismissed the complaint. In opposition, plaintiff failed to raise a triable issue.
The Appellate Division reversed, and dismissed the complaint.
Student note: The failure to pursue an appeal
in an underlying action bars a legal malpractice action where the client
was likely to have succeeded on appeal in the underlying action.
Case: Buczek v. Dell & Little, LLP, NY Slip Op 03492 (2d Dept. 2015)
Here is the decision.
Tomorrow's issue: Spoilation.
