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PLAINTIFF DID NOT SUFFER A “SERIOUS INJURY” WITHIN THE MEANING OF THE INSURANCE LAW IN THE UNDERLYING PEDESTRIAN-VEHICLE ACCIDENT CASE; THEREFORE PLAINTIFF COULD NOT HAVE SUCCEEDED ON THE MERITS OF THAT ACTION; DEFENDANT ATTORNEY WAS ENTITLED TO SUMMARY JUDGMENT DISMISSING THE INSTANT LEGAL MALPRACTICE ACTION (SECOND DEPT).

The Second Department, reversing Supreme Court, determined the defendant attorney was entitled to dismissal of the legal malpractice action because plaintiff could not have succeeded in the underlying traffic accident case. Plaintiff, a pedestrian, was struck by a vehicle. The traffic-accident case was dismissed because plaintiff did not sustain a “serious injury” within the meaning of the Insurance Law:

“A plaintiff seeking to recover damages for legal malpractice must establish that (1) the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and (2) the attorney’s breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages” … . “Even if a plaintiff establishes the first prong of a legal malpractice cause of action, the plaintiff must still demonstrate that he or she would have succeeded on the merits of the action but for the attorney’s negligence” … . “To succeed on a motion for summary judgment dismissing a legal malpractice action, a defendant must present evidence in admissible form establishing that at least one of the essential elements of legal malpractice cannot be satisfied” … .

Here, in support of its motion, the defendant submitted evidence demonstrating that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident. The defendant thus established … that the plaintiffs would not have succeeded on the merits of the underlying personal injury action … . Dodenc v Dell & Dean, PLLC, 2025 NY Slip Op 00650, Second Dept 2-5-25

Practice Point: An essential element of a legal malpractice action is that the plaintiff would have succeeded on the merits in the underlying action. Here the attorney demonstrated plaintiff did not sustain a serous injury within the meaning of the Insurance Law and, therefore, plaintiff would not have succeeded in the underlying traffic accident case.

 

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