Ryan v. Powers & Santola, LLP, 2010 NY Slip Op 03827 (3rd Dept. May 6, 2010)
Underlying Personal Injury Action
Facts: Plaintiff Ryan was struck on the head by highchair while dining at a restaurant. He then retained Powers & Santola to represent him in a negligence action against the restaurant.
In response to the defendants’ motion to compel production of a verified bill of particulars and responses to outstanding discovery demands, the trial court issued an order in the underlying action providing that the matter would be dismissed if Ryan failed to provide the outstanding discovery. Although Ryan eventually served discovery responses, a number of responses required more specific answers. The trial court, thereafter, extended the discovery schedule twice with a conditional order that the action would be dismissed if plaintiff continued to fail to provide responses. Ryan failed to comply and the matter was in fact dismissed.
Subsequently, Ryan commenced a legal malpractice action against Powers & Santola for “failing to follow court orders…consenting to conditional orders…and failing to move to vacate the dismissal order”. Ryan moved for partial summary judgment on the issue of liability.
Issue: Is Ryan’s alleged failure to cooperate with counsel in preparing discovery responses a viable defense to his action for legal malpractice?
Ruling: Yes. The Court held that:
A claim of legal malpractice will be sustained if the plaintiff establishes…that [he] would have succeeded on the merits of the underlying action but for the attorney’s negligence…We agree…that the plaintiff’s conclusory assertions – that ‘but for’ defendants’ alleged negligence, they ‘would have been able to prosecute all causes of action to a successful outcome’ – failed to establish their prima facie entitlement to summary judgment…There are questions of fact as to whether plaintiff failed to cooperate with defendants in providing them with information and documents necessary for motion practice after the underlying action was dismissed.
Lesson: A former client’s failure to cooperate is a question of fact in assessing the liability of the attorney in a malpractice action. Failure to cooperate, more likely than not, would prevent plaintiff from establishing that “but for” his former counsel’s malpractice, he would have prevailed in the underlying action.