LEGAL MALPRACTICE COMPLAINT UPHELD FOR INJURY PLAINTIFF WHO CLAIMS SHE SETTLED TOO CHEAPLY

Court: Supreme Court, Appellate Division, First Department, New York

Case: Aracelis Polanco v. Greenstein & Milbauer, LLP

Date: June 7, 2012

From: New York attorney Gary E. Rosenberg (personal injury and accident attorney and lawyer; serving Queens; Queens accident lawyer)

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Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about May 27, 2011, which, to the extent appealed from, granted defendant law firm's motion to dismiss the amended complaint for failure to state a cause of action, unanimously reversed, on the law, without costs, and the motion denied.

In her amended complaint, plaintiff alleged, among other things, that she was injured when she was struck in the neck by a piece of lumber; that defendant was negligent in urging her to settle the underlying personal injury action and in advising her that an MRI was not necessary and that its results would not lead to a more favorable outcome of her case; that, after settling the case for $20,000, she obtained an MRI showing a disc herniation that required surgical intervention; that she remains permanently disabled; that defendant's negligence proximately caused her to sustain damages by not gaining the fair value for her case; and that she would have been successful in the underlying action had defendants exercised due care. These allegations are sufficient to state a claim for legal malpractice (see Garnett v. Fox, Horan & Camerini, LLP, 82 A.D.3d 435, 435, 918 N.Y.S.2d 79 [2011]; see generally Tortura v. Sullivan Papain Block McGrath & Cannavo, P.C., 21 A.D.3d 1082, 1083, 803 N.Y.S.2d 571 [2005], lv. denied 6 N.Y.3d 701, 810 N.Y.S.2d 415, 843 N.E.2d 1155 [2005]). Plaintiff was not required to show a likelihood of success in the underlying action, but was "required only to plead facts from which it could reasonably be inferred that defendant's negligence caused [her] loss" (Garnett, 82 A.D.3d at 436, 918 N.Y.S.2d 79). Plaintiff plead such facts.

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