Opinion
March 16, 1971
Appeals from orders of the Supreme Court at Special Term, entered August 7, 1969 in Broome County, which denied appellant's motion to dismiss each complaint for failure to state a cause of action. (CPLR 3211, subd. [a], par. 7.) Respondents have commenced actions for malpractice against appellant attorney for failure to initiate suit for personal injuries sustained in a motor vehicle accident within the period of limitations. The complaints in these actions fail to allege all the essential elements of the negligence cause of action against the truck involved in the accident case. They allege that at a named time and place the vehicle in which respondents were riding was involved in a collision with a tractor trailer "owned by Keystone Trucking Company and operated by one Norman Lafferty" and that if the defendant attorney had prosecuted the actions diligently, respondents would have obtained judgments. Appellant claims the complaints are fatally defective and should be dismissed. They are not. ( Dulberg v. Mock, 1 N.Y.2d 54.) The complaints fairly apprise the appellant of the malpractice intended to be proved and the material elements of the causes of action. (CPLR 3013.) The failure to specifically allege negligence and freedom from contributory negligence in the underlying accident case does not prejudice defendant and should be disregarded. (CPLR 3026; Foley v. D'Agostino, 21 A.D.2d 60; 38 St. John's L. Rev. 198.) Orders affirmed, without costs. Herlihy, P.J., Reynolds, Greenblott, Cooke and Simons, JJ., concur.