Opinion
INDEX NO. 159279/2015
01-11-2019
U JOON SUNG, Plaintiff, v. ANDREW I. PARK, ESQ., JUNGHYUN CHOI, ESQ., SIM & PARK, LLP, and ANDREW PARK, P.C., Defendants.
NYSCEF DOC. NO. 73 PRESENT: HON. KATHRYN E. FREED Justice MOTION SEQ. NO. 002
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number (Motion 002) 41, 42, 43, 44, 45, 46, 47, 48, 49, 50, 51, 52, 53, 54, 55, 56, 57, 58, 59, 60, 61, 62, 63, 64, 66, 67, 68, 69, 70, 71, 72 were read on this motion for SUMMARY JUDGMENT. Upon the foregoing documents, it is ordered that the motion is denied.
In this legal malpractice action, plaintiff U Joon Sung moves, pursuant to CPLR 3212, for summary judgment on the issue of defendants Andrew I. Park, Esq., Sim & Park, LLP, and Andrew Park, P.C.'s liability for their failure to duly prosecute his claims in an underlying personal injury action. After oral argument, and after a review of the parties' papers and the relevant statutes and caselaw, it is ordered that the motion is denied.
FACTUAL AND PROCEDURAL BACKGROUND:
The facts of this case have been set forth at length in previous decisions of this Court issued on September 18, 2013 (Weiss, J.) (Doc. 44), and on February 23, 2016 (Freed, J.) (Doc. 46). In the earlier of the two decisions, this Court denied plaintiff's motion to vacate a dismissal of an underlying personal injury action styled U Joon Sung v Feng Ue Jin, Supreme Court, Queens County Index Number 24966/09 ("the underlying action"). (Doc. 44.) Defendants herein represented plaintiff in that matter. (Doc. 46 at 3-4.) In refusing to vacate the default, this Court excoriated defendants' "overall lack of diligence in prosecuting [plaintiff's] case" (Doc. 44 at 5), and also noted that they failed to demonstrate a meritorious cause of action on behalf of plaintiff by not "submit[ting] any competent medical evidence" (id.). This decision was appealed and subsequently upheld by the Second Department by an order issued on April 1, 2015. (Doc. 45.)
On September 1, 2015, plaintiff commenced the instant action against defendants by filing a summons and complaint. (Doc. 47.) In his complaint, plaintiff alleges a single cause of action for legal malpractice. (Id.) Defendants then moved to dismiss the complaint on the basis that the documentary evidence establishes a defense as a matter of law. (Doc. 46 at 6.) In particular, they argued that this Court's order of September 18, 2013 (Weiss, J.)—which, as mentioned above, held that plaintiff failed to establish a meritorious claim in the underlying personal injury action—warranted dismissal of the complaint in this action. (Id.)
This Court (Freed, J.) disagreed. (Doc. 46.) By order dated February 23, 2016, this Court reasoned that "a dismissal of a prior action . . . based on a failure to prosecute does not constitute a dismissal on the merits and does not bar a subsequent action based on the same facts." (Id. at 7) (case citations omitted). The decision further determined that if "Justice Weiss' order were not clear enough, the order of the Appellate Division, Second Department confirms that the only issue before Justice Weiss was whether the order dismissing the complaint as abandoned should be vacated." (Id. at 8.)
Plaintiff now moves, pursuant to CPLR 3212, for summary judgment on the issue of defendants' liability for their failure to prosecute his claims under New York Insurance Law §§ 5102(a) and 5104(a) in the underlying personal injury action. (Doc. 41 at 3.) He further moves, pursuant to CPLR 3212 and 3404, for summary judgment deeming defendants liable for abandoning his claims. (Id.) Defendants oppose the motion.
LEGAL CONCLUSIONS:
The party moving for summary judgment must make a prima facie showing of entitlement to judgment as a matter of law on the undisputed facts. (See Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985].) The movant must produce sufficient evidence to eliminate any issues of material fact. (Id.) If the moving party makes a prima facie showing of entitlement to judgment as a matter of law, the burden then shifts to the party opposing the motion to present evidentiary facts in admissible form which raise a genuine, triable issue of fact. (See Mazurek v Metro. Museum of Art, 27 AD3d 227, 228 [1st Dept 2006].)
A plaintiff in a suit for legal malpractice must establish three elements: (1) that the attorney failed to exercise the degree of care, skill, and diligence commonly possessed and exercised by a member of the legal community; (2) that such negligent failure was a proximate cause of the loss in question; and (3) that the plaintiff sustained actual and ascertainable damages. (See Barbara King Family Trust v Voluto Ventures LLC, 46 AD3d 423, 424 [1st Dept 2007].) The plaintiff's burden of proof in a legal malpractice action is a heavy one. (See Lindenman v Kreitzer, 7 AD3d 30, 34 [1st Dept 2004].) In regard to the element of proximate causation, an "attorney's conduct or inaction is the proximate cause of a plaintiff's damages if but for the attorney's negligence the plaintiff would have succeeded on the merits of the underlying action, or would not have sustained actual and ascertainable damages." (Gallet, Dreyer & Berkey, LLP v Basile, 141 AD3d 405, 405 [1st Dept 2016].)
Plaintiff's primary argument in moving for summary judgment against defendants is that, "given the underlying liability involved a rear-end collision which occurred while [he] was at a complete stop . . . he would have prevailed in the underlying action" but for defendants' negligence in failing to prosecute his action. (Doc. 41 at 6.) Plaintiff cites Insurance Law §§ 5102(a) and 5104(a) in support of his underlying injury action.
This Court determines that summary judgment must be denied because plaintiff has failed to establish his prima facie showing that he would have prevailed on the merits of his underlying Insurance Law §§ 5102(a) and 5104(a) claims but for the defendants' negligence. § 5102(a) merely provides the statutory definition for "basic economic loss" for Article 51 of the Insurance Law. (See Insurance Law § 5102[a].) § 5104(a) is limited only to claims that involve a "serious injury." (See McLoyrd v Pennypacker, 178 AD2d 227, 227 [1st Dept 1991] ("With the adoption of no-fault insurance in this State, the Legislature has sought to remove from the judicial arena litigation involving all claims save those involving the most serious physical injury.").) "In order for a non-permanent injury to be considered 'serious' . . . there must be a medical determination as to the extent of the injury and its adverse impact on the injured party's ability to perform his usual and customary daily activities." (Id.)
In his order, Justice Weiss highlighted the inadequacies of plaintiff's medical evidence, and explicitly stated that plaintiff "failed to demonstrate the existence of a meritorious cause of action." (Doc. 44 at 5.) Specifically, Justice Weiss reasoned that an MRI taken 9 months after the accident and that a doctor's report—which was "based upon the unsworn reports of other doctors"—do "not constitute competent medical evidence" to support an allegation of a serious injury. (Id.) Nothing in plaintiff's motion papers remedies these deficiencies.
The submitted MRI shows that plaintiff suffered "moderate swelling," but also that there was "no evidence of fracture, bone erosion, or bone destruction." (Doc. 62 at 4.)
In a similar vein, plaintiff's evidence on the motion does not eliminate triable issues of fact. Although defendant Park admitted at his deposition that he understood that the underlying case was dismissed due to his failure to prosecute plaintiff's action (Doc. 58 at 5-6), plaintiff has not shown that he would have established that he sustained a "serious injury" had the case gone forward. Finally, while plaintiff submits the reports of two witnesses, those experts only made conclusions as to plaintiff's lost wages due to the accident and are not dispositive on the issue of liability. (Docs. 63-64.) Thus, summary judgment against defendants on plaintiff's claims for legal malpractice is denied.
The Court has considered plaintiff's remaining arguments and does not find them persuasive.
In accordance with the foregoing, it is hereby:
ORDERED that plaintiff U Joon Sung's motion for summary judgment is denied; and it is further
ORDERED that plaintiff's counsel is to serve a copy of this order, with notice of entry, on all parties and on the Clerk of the General Clerk's Office (60 Centre Street, Room 119) within 30 days after the entry of this order onto NYSCEF; and it is further
ORDERED that this constitutes the decision and order of this Court. 1/11/2019
DATE
/s/ _________
KATHRYN E. FREED, J.S.C.