The Appellate Division, upon a jury verdict in favor of defendant, and appeal therefrom, affirmed the denial of plaintiff's post-trial motion to set aside the jury's verdict. It is well-settled that in order to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages. In order to establish causation, a plaintiff must show that, but for the attorney's negligence, he would have prevailed in the underlying action. Here, the jury's verdict that defendant did not depart from the requisite standard of care by failing to call a surgeon as an expert witness at the trial of plaintiff's medical malpractice action was not utterly irrational or against the weight of the evidence. The record presents a valid line of reasoning and permissible inferences that could have led the jury to find that before defendant rested his case, he informed the trial court that he intended to call the surgeon but could not locate her during the recess. The jury could have reasonably concluded that under the circumstances defendant could not have done more to secure the surgeon's testimony and. therefore, in not calling her before resting, he did not fail to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession.
Warren v. Silas, NY Slip Op 03930 (1st Dep't June 17, 2021)
