A plaintiff seeking to recover damages for legal malpractice must prove that the defendant-attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages. A defendant seeking summary judgment dismissing the claim must establish, prima facie, that he did not fail to exercise such skill and knowledge, or that the claimed departure did not proximately cause the plaintiff to sustain damages. In order to establish causation, a plaintiff must show that he would have prevailed in the underlying action, or that, but for the lawyer's negligence, he would not have incurred any damages.
Here, the plaintiff retained the defendant-law firm to represent her in a personal injury action against the driver of the car that struck her while she was leaving work. After the plaintiff became dissatisfied with the firm's representation of her, she discharged the firm. Thereafter, the plaintiff applied for Workers' Compensation benefits, but the claim was denied as time-barred because it was filed more than two years after the accident. The plaintiff alleges that the firm committed malpractice because it failed to file for Workers' Compensation benefits on her behalf and misadvised her regarding her right to file a Workers' Compensation claim.
The firm demonstrated, prima facie, that the plaintiff would not have prevailed in her claim for Workers' Compensation benefits. The evidence established that the underlying accident was related to a risk shared by the general public, as opposed to a special hazard connected to the plaintiff's employment. The plaintiff failed to raise a triable issue of fact, and the firm's summary judgment motion dismissing the complaint is granted.
Provenzano v. Cellino & Barnes, P.C., NY Slip 04749 (2d Dep't July 27, 2022)
