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NY: Switching the Burden of Proof: Defendant Lawyer Motion to Dismiss Legal Mal Case Requires Lawyer to Show that Client Would have Lost!

Middleton v. Kenny, 286 AD 2d 957 (N.Y. 4th Dept. 2001)

NY: Personal Injury

Student Contributor: Adam Gardin

Facts: Plaintiff was represented by defendants in an underlying personal injury action concerning plaintiff’s “alleged exposure to fumes and chemicals at” his workplace. The action was dismissed by Court, which ruled that the “Supreme Court abused its discretion in granting plaintiff’s motion for an extension of time to file a note of issue after having been served with a 90-day demand…” Plaintiff subsequently filed suit against defendants for negligence in failing to respond to the demand within 90 days.

Issue: 1) But for defendants’ negligence, would the plaintiff have been successful in the underlying case? 2) Did the plaintiff suffer an injury sufficiently accepted by the scientific community to pass the Frye-Daubert test?

Ruling: 1) Defendants failed to establish that the plaintiff would not have been successful in the underlying action because it was their which resulted in the failure to file the note of issue within 90 days. 2) Defendants’ attempt to apply the Frye-Daubert test fails because they were unable to demonstrate that plaintiff’s injury has not gained scientific acceptance.

Lesson: Interesting burden of proof switching here. In order to prevail on a summary judgment motion where the client sued the lawyer for blowing a time limitation, the defendant had to prove that the client would not have prevailed in the underlying suit that they had botched.

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Posted in: New York