Opinion
570225/07.
Decided March 3, 2010.
Defendants appeal (1) from that portion of an order of the Civil Court of the City of New York, New York County (Peter H. Moulton, J.), entered September 12, 2008, which denied their motion for summary judgment, and (2) as limited by their brief, from that portion of an order (same court and Judge), dated November 25, 2008, which denied their motion to renew their prior motion for summary judgment. Plaintiff cross-appeals from that portion of the September 12, 2008 order which denied her cross motion for summary judgment.
Order (Peter H. Moulton, J.), entered September 12, 2008, modified to grant defendants' motion for summary judgment dismissing the complaint, and as so modified, affirmed, without costs. The Clerk is directed to enter judgment accordingly. Appeal from order (same court and Judge), dated November 25, 2008, dismissed, without costs, as academic.
PRESENT: McKeon, P.J., Shulman, J.
Plaintiff retained defendants, a lawyer and his firm, to represent plaintiff in a proceeding before the New York State Workers' Compensation Board. The Board, after a hearing which had been re-opened after a prior hearing resulting in the termination of plaintiff's worker's compensation benefits, denied plaintiff's application for certain benefits. Plaintiff subsequently commenced this legal malpractice action alleging that defendants were negligent in failing to notify the Board, in advance of the re-opened hearing, that her doctor would not be available to testify on the date of the hearing. Plaintiff asserted that this failure prevented her from obtaining an adjournment of the hearing, caused the testimony of her physician to be precluded and led to the adverse decision of the Board. Plaintiff also alleged that defendants were negligent in failing to cross-examine plaintiff's employer's medical expert during the re-opened hearing. The parties' competing summary judgment motions were denied, prompting these cross appeals.
Defendants made a prima facie showing that they were not negligent and, further, that their claimed negligence did not proximately cause plaintiff's alleged damages. Plaintiff's opposition, which consisted mainly of the affidavit of a purported expert whose qualification to render competent opinions with respect to legal issues arising in the area of workers' compensation practice is questionable, was insufficient to raise a triable issue.
Plaintiff's purported expert's assertion that defendants were negligent in failing to notify the Board, in advance of the re-opened hearing, that her doctor would not be available to testify at that hearing is without probative value, since the "expert" did not cite any statute, rule or policy of the Board to support that assertion ( see Buchholz v Trump 767 Fifth Ave., LLC, 5 NY3d 1). Moreover, plaintiff's purported expert's conclusory contention that defendants were negligent in failing to cross-examine plaintiff's employer's medical expert during the re-opened hearing (after defendants had previously cross-examined that same expert at a prior hearing) amounts to nothing more than criticism of defendants' considered, tactical strategy of how best to pursue plaintiff's claim ( see Pacesetter Comm. Corp. v Solin Breindel, P.C., 150 AD2d 232, 235; see also Dweck Law Firm, LLP v Mann, 283 AD2d 292).
With respect to whether plaintiff would have prevailed in the worker's compensation proceeding "but for" defendants' alleged negligence ( see AmBase Corp. v Davis Polk Wardell, 8 NY3d 428; Davis v Klein, 88 NY2d 1008), plaintiff's purported expert's opinion that defendants' alleged negligence caused plaintiff to lose her claim before the Board is insufficient to raise a triable issue. Notably, both the administrative law judge ("ALJ") who heard and decided plaintiff's claim and the administrative body that reviewed the ALJ's decision concluded that plaintiff's physician's excuse for failing to attend the re-opened hearing was substantively insufficient to warrant a further adjournment of the proceeding. Therefore, any failure on defendants' part to notify the Board before the hearing of the physician's excuse was immaterial. Plaintiff's purported expert's assertion that defendants' failure to cross-examine plaintiff's employer's medical expert during the re-opened hearing caused plaintiff to lose her claim is rank speculation ( see generally John T. Tilden, Ltd. v Profeta Eisenstein, 236 AD2d 292).
Accordingly, defendants' motion for summary judgment dismissing the complaint should have been granted.
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.