Plaintiff stated a valid legal-malpractice cause of action against his former plaintiff’s-attorneys where the attorneys had failed to refresh the recollection of the sole eye witness with the police accident report before the witness was deposed. After the witness’s misdescription of the hit-and-run vehicle, plaintiff lost his personal-injury action.

Plaintiff stated a valid legal-malpractice cause of action against his former plaintiff’s-attorneys where the attorneys had failed to refresh the recollection of the sole eye witness with the police accident report before the witness was deposed. After the witness’s misdescription of the hit-and-run vehicle, plaintiff lost his personal-injury action. 

​Reversing Supreme Court, the First Department stated that plaintiff stated a valid cause of action for legal malpractice against his former law firm’s motion.  The law firm had formerly represented plaintiff in the latter’s personal-injury lawsuit arising out of a hit-and-run accident.  Supreme Court had granted the law firm’s motion to dismiss and the First Department reversed.

Plaintiff had been struck by a garbage truck that had fled the scene.  The defendant-driver in the underlying personal injury action had been driving a green garbage truck with a flat front and had admitted to a route that would have placed him in at the scene on the day and at the time of the accident.  The police report regarding the accident showed that the sole eye witness had called the police shortly after the accident and had described the hit-and-run vehicle as a green garbage truck with a flat front.

The eye witness was deposed two years after the accident and testified that that the garbage truck he remembered fleeing the scene had a round front, not a flat front.  Plaintiff lost his personal-injury suit.

Plaintiff alleged in the subject malpractice action that defendant law firm had failed to refresh the recollection of the sole eyewitness before the deposition about the appearance of the truck, which led to erroneous testimony by the witness and which but for that negligence had caused the loss of plaintiff’s personal-injury case.

The First Department held that these allegations were sufficient to survive a CPLR 3211(a)(1) and (7) motion to dismiss, as nothing in the record conclusively established a defense as a matter of law.

The First Department also granted plaintiff’s motion to amend his complaint stating that plaintiff’s proposed amendments (without elucidation as to what they were), stating that the amendments were not “patently devoid of merit” and would not prejudice or surprise defendants.

Caso v Miranda Sambursky Sloane Sklarin Ver Veniotis LLP, 2017 NY Slip Op 03607, 1st Dept 5-4-17.