Wednesday, October 22, 2008

Dismissal Affirmed

An order granting summary judgment to the defendats in a legal malpractice case was affirmed by the New York Appellate Division for the First Judicial Department. The plaintiff had alleged negligence in the prosecution of a workers compensation claim. The court concluded that there was insufficient evidence that the alleged failure to obtain medical records caused damages:

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.

(Mike Frisch)

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