Chicago Legal Malpractice Lawyer Blog
In Dodenc v. Dell & Dean, PLLC 2025 NY Slip Op 650, the Appellate Division ordered the dismissal of a legal malpractice claim filed by an unsuccessful plaintiff in a personal injury case. Dodenc alleged that she was unable to prove her case because of the negligence of the law firm. The lawyers moved to dismiss. They argued that she did not sustain a “serious injury” and that her personal injury case was without merit. This means that the firm is arguing against its former client. “You lost because your case wasn’t very good.”
Here is a short quotation from the opinion:
“A plaintiff seeking to recover damages for legal malpractice must establish that (1) the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and (2) the attorney’s breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages” (McGlynn v. Burns & Harris, Esq., 223 AD3d 733, 734-735 [internal quotation marks omitted]; see Nill v. Schneider, 173 AD3d 753, 755). “Even if a plaintiff establishes the first prong of a legal malpractice cause of action, the plaintiff must still demonstrate that he or she would have succeeded on the merits of the action but for the attorney’s negligence” (Di Giacomo v. Michael S. Langella, P.C., 119 AD3d 636, 638; see Valley Ventures, LLC v. Joseph J. Haspel, PLLC, 102 AD3d 955, 956). “To succeed on a motion for summary judgment dismissing a legal malpractice action, a defendant must present evidence in admissible form establishing that at least one of the essential elements of legal malpractice cannot be satisfied” (Schmidt v. Burner, 202 AD3d 1117, 1119; see Valley Ventures, LLC v. Joseph J. Haspel, PLLC, 102 AD3d at 956).
Here, in support of its motion, the defendant submitted evidence demonstrating that the injured plaintiff did not sustain a serious injury within the meaning of Insurance Law ยง 5102(d) as a result of the accident. The defendant thus established, prima facie, that the plaintiffs would not have succeeded on the merits of the underlying personal injury action (see Verdon v. Duffy, 120 AD3d 1343, 1344; cf. Detoni v. McMinkens, 147 AD3d 1018, 1020). In opposition, the plaintiffs failed to raise a triable issue of fact.
In other words, the court is saying that because the plaintiff could not establish the case-within-a-case the law firm was entitled to dismissal of the complaint.