Legal Malpractice Case Dismissed for Lack of Proximate Cause

The elements of legal malpractice are well settled, as the Appellate Divisions write.  One of the triumvirate is proximate cause.  We've written in the past about the difference between "the" proximate cause and "a" proximate cause, see: Barnett v. Schwartz, 47 AD3d 197 (2d Dept,20070

Here is a case  Silberman v Reisman, Abramson, P.C. ,2008 NY Slip Op 07958 ,Appellate Division, First Department  in which plaintiff probably lost her worker's compensation case on the basis that she had an intervening accident.  Her attorneys did not obtain her medical records, and lost the motion.  From a reading of this decision, it seems that the legal malpractice attorneys did not themselves obtain a copy of the medical records in question.
 
"While an issue of fact exists as to whether defendants were negligent in failing to obtain plaintiff's medical records relating to the intervening 1990 accident, plaintiff adduces no evidence that but for such negligence the Board would not have rejected her reopened claim for the 1983 accident (see Russo v Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, 301 AD2d 63, 67 [2002]). There is simply nothing in the record to indicate the content of the medical records in question, and whether, as plaintiff claims, they would have shown that the intervening accident had no effect on her claimed present inability to work. Failure to demonstrate an issue of fact as to proximate cause requires dismissal of a legal malpractice action regardless of whether the attorney was negligent (id.). We have considered plaintiff's other arguments, including that defendants' failure to obtain the medical records should be sanctioned as a form of spoliation, and find them unavailing

Snow & Ice Cases and Legal Malpractice

New York, being in the northeast , has a rich history of snow & ice cases.  A whole series of rules have arisen which accompany and inform the law of accidents on snow & ice.  As one example, the precipitation must have already ended for a case to be viable. The difference between misfeasance and nonfeasance also applies.  Here in this legal malpractice case Teodorescu v Resnick & Binder, P.C. ,2008 NY Slip Op 07904 ,Appellate Division, Second Department
 the court lays out a series of rules for snow & ice cases, for legal malpractice and for summary judgment.

Legal Malpractice:  "To prevail in an action to recover damages for legal malpractice, a plaintiff must establish 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 attorney's breach of that duty proximately caused the plaintiff to sustain actual and ascertainable damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442). To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action, or would not have incurred any damages but for the attorney's negligence (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442; Davis v Klein, 88 NY2d 1008, 1009-1010; Lamanna v Pearson & Shapiro, 43 AD3d 1111; Cohen v Wallace & Minchenberg, 39 AD3d 691). A defendant moving for summary judgment in a legal malpractice action must present admissible evidence that the plaintiff cannot prove at least one of the essential elements of a legal malpractice cause of action (see Levy v Greenberg, 19 AD3d 462; Crawford v McBride, 303 AD2d 442). "

Snow & Ice: "To make out a prima facie case of negligence in a slip-and-fall case involving an accumulation of snow and ice, the plaintiff must demonstrate that the defendant created the condition which caused the accident, or that it had actual or constructive notice thereof (see Voss v D & C Parking, 299 AD2d 346). To give rise to constructive notice, a defect must be visible and apparent, and exist for a sufficient length of time prior to the happening of an accident to permit the defendant to discover and remedy it (see Gordon v American Museum of Natural History, 67 NY2d 836; see also Chianese v Meier, 98 NY2d 270, 278). In order to prevail in the underlying action against the NYCHA on a theory of constructive notice, the plaintiff would have had to introduce evidence of the origin of the particular icy condition that caused her to fall (see Simmons v Metropolitan Life Ins Co., 84 NY2d 972; Ciaschi v Taughannock Constr., 204 AD2d 883). General awareness that snow and ice may be present is legally insufficient to constitute notice of the particular condition that caused the plaintiff's fall (see Piacquadio v Recine Realty Corp., 84 NY2d 967; Gloria v MGM Emerald Enterprs., 298 AD2d 355)."

Summary Judgment: "In the instant case, the defendant established its prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff would not have been successful in an action against the NYCHA on a theory of constructive notice. The defendant relied on the plaintiff's deposition testimony, which was insufficient to support her claim that the icy patch where she slipped existed when she traversed that sidewalk the previous evening. The plaintiff could not point out the exact location of her fall other than that it was in the middle of the block in front of the George Washington Housing Project. In opposition to the defendant's motion, the plaintiff failed to raise a triable issue of fact as to whether she could have prevailed against the NYCHA on a theory of constructive notice. The plaintiff offered only speculation that the ice on which she slipped had to have been a product of the prior snowfalls, which were not properly cleared. "

The companies on Wall Street are not the only ones who are feeling the heat with our declining economy; small businesses are also being severely impacted.  In fact, they employ more than half of the workforce in the city.  With this in mind, Mayor Bloomberg and Robert W. Walsh, the Commissioner of Small Business Services (SBS), announced that they are teaming up with the Chambers of Commerce from each borough to expand small business assistance through NYC Business Solutions Centers.  The partnership is intended to increase awareness of the resources that NYC Business Solutions Centers offers.

Walsh says, "Through NYC Business Solutions, we have account managers across our City who are experts in helping small businesses access capital, develop or refine business plans, and navigate City government." The SBS will give the chambers descriptions of their services and the qualifications that must be met by particular businesses in order to receive assistance.  Among the services being offered are legal aid (including pro-bono lawyers), business courses and business planning, hiring services, training, M/WBE Certification and perhaps one of the most important aid currently desired, connections in financing.  The present economic condition is making it difficult for many, including small businesses, to get a loan.  The SBS will hopefully be able to assist the businesses in meeting the necessary requirements of getting a loan, "[they will] help businesses package their applications and leverage existing relationships with lenders to increase the businesses' chances of successfully receiving a loan."          

It is reassuring to see that the government is taking action to ensure the survival of the small businesses of New York.  After speaking to several of those who are employees of small businesses, they said they were worried they would be left in the dark with all the attention focused on the dramatic events occurring on the streets of Downtown Manhattan.  It is not to be forgotten that what occurs on Wall Street effects the economy in its entirety, but as stated, small businesses employ over half of the workers of New York.  New York remains a city that requires attention to all spectrums of business.

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Atlanta’s Oglethorpe University plans to display President Franklin D. Roosevelt’s 1932 campaign speech on the Depression.  The speech was given to the 1932 graduating class, and echoes what we have heard from candidates throughout this year’s Presidential campaign.

“We need to correct, by drastic means if necessary, the faults in our economic system from which we now suffer,” said Roosevelt.

Much of what has gone on in the economy over the last few weeks is hauntingly similar to the time of the Great Depression.  The government has and continues to relieve the struggling economy that has plummeted to historical lows.  

“We have not been brought to our present state by any natural calamity – by drought or floods for earthquakes or by the destruction of our productive machine or our man power,” said Roosevelt in the speech.  “This is the awful paradox with which we are confronted, a stinging rebuke that challenges our power to operate the economic machine which we have created.”

Tonight the United States Senate will vote on the revised $700 billion financial rescue plan.  On Monday the first version was shot down by the House of Representatives.  Republican presidential nominee John McCain, and Democratic nominee Barack Obama, and his running mate Joe Biden, confirmed they will be present for the vote.

President Bush recently addressed the nation on September 24, 2008 to gain support for the Wall Street bailout, only to see it fail to pass in the House vote.  It seems like Republicans in the House have gone to great lengths to separate themselves from the Bush administration, no better evident than by failing to pass this vital piece of legislation.  It is assumed the bill will get passed in the Senate vote tonight.

“The country needs and – unless I mistake its temper – the country demands bold, persistent experimentation,” said Roosevelt, “It is common sense to take a method and try it: If it fails, admit it frankly and try another.  But above all, try something.”

Now that the United States is “trying something”, let’s hope it works, and wish our next President the best of luck with this mess.