Stellar defense work by Goldberg Segalla partner Christopher F. Lyon and associate Matthew H. Feinberg secured in New York Supreme Court the dismissal of a claim brought against our client in a legal malpractice action.
The case was filed by a plaintiff who sued her former attorneys for allegedly failing to add in a timely manner a volunteer ambulance company to a lawsuit she initiated following a car accident. The plaintiff was treated for injuries at the scene and during that treatment, EMS — in attempting to triage the woman — cut through her pants to attend to a leg injury. In doing so, however, the first responder inadvertently cut into the plaintiff’s leg, resulting in a deep, long gash.
There were two different EMS providers at the scene, one of which was added to the underlying lawsuit. But as it turned out, it was the other provider who was responsible for the plaintiff’s scissor injury.
Suing the ambulance company would have required a Notice of Claim. Since more than a year and 90 days elapsed, it was impossible to add them back to the suit. Thus, the plaintiff substituted our clients out for a different law firm and filed the instant lawsuit for legal malpractice in failing to timely file a notice of claim, or otherwise commence a suit against the ambulance company.
Chris, a partner in Goldberg Segalla’s Management and Professional Liability practice group, and Matthew Feinberg, an associate in the practice group, filed a motion to dismiss, arguing the legal malpractice causes of action were legally insufficient because the plaintiff failed to adequately plead causation. Specifically, it was argued that the alleged failure to assert claims against the ambulance company did not damage the plaintiff because such claims could not have prevailed since the company enjoys governmental immunity and immunity under Public Health Law 3013. Chris also argued that the plaintiff’s damages were speculative since the underlying action remained ongoing.
Additional counts asserted claims for Judiciary Law §487 violations — a “professional negligence per se” allegation against a party that was a non-attorney at the time — and an additional legal malpractice claim against a per diem who handled the plaintiff’s deposition.
In opposition, the plaintiff argued 11 separate points in a disorganized fashion, giving the impression they were aiming to see what claims would stick. Most notably, though, was the plaintiff failed to oppose the application of governmental immunity to the ambulance company. As such, Chris and Matt made a clear case for why the plaintiff’s opposition fell short.
The court agreed with Chris and Matt’s arguments, finding the complaint failed to allege specific facts demonstrating that the plaintiff would have prevailed in the underlying action against the ambulance company and, further, failed to plead actual and ascertainable damages as a result of the legal malpractice. The court also agreed that the complaint was required to plead proximate causation by setting forth a prevailing theory of liability against the ambulance company, an entity with governmental immunity, and specifically how the company owed plaintiff a “special duty” in providing emergency services.
The court further acknowledged that the plaintiff failed to refute our governmental immunity arguments, and thus “waived her opposition to same.” The court determined that specific factual allegations to overcome the protections of Public Health Law 3013 were also missing. Thus, it dismissed all claims.
Playing an important role in our victory was Goldberg Segalla attorney Matthew H. Feinberg, who worked diligently with Chris in preparing the motion, providing thoughtful consideration to our points and specifically on how best to counter the plaintiff’s opposition.
