The opinion of the court was delivered by: Kimba M. Wood, U.S.D.J.
This case involves allegations of legal malpractice following a dog bite. Plaintiff Young Sook Kim, also known as Young Sook Chun ("Kim"), was severely injured when she was bitten by a dog on January 1, 1999. Kim retained Defendant David Goldstein to file a personal injury action on her behalf. No action was ever filed, and the statute of limitations elapsed. Kim and her husband, Kyoung Woun Chun ("Chun"), then brought suit against Goldstein in this Court. Goldstein moves for summary judgment on the sole remaining count of the Complaint,*fn1 which alleges that Goldstein engaged in legal malpractice. For the reasons stated below, summary judgment is granted.
On January 1, 1999, Kim visited Young Ja Kim Lee ("Lee") at Lee's house in South Salem, New York. (Flanagan Aff., Ex. D (Kim Dep.), at 11-12; Def.'s Rule 56.1 Statement ¶ 5.) Lee owned a one-year-old Jindo dog named Jin. (Flanagan Aff., Ex. E (Lee Dep.), at 9-10.) Kim alleges that she was afraid of the dog, because it was large and because it sat in front of a window barking and "moaning." (Kim Dep. at 19-20.) Kim says she told Lee she was afraid and asked her to tie up the dog, but Lee refused. (Id. at 21-22.) Some minutes later, the dog approached Kim, who was seated on a sofa, and then, without warning, bit her on the face and arm. (Id. at 26-27.)
Kim retained Goldstein to bring a personal injury action against Lee. (Def.'s Rule 56.1 Statement ¶ 1.) No action was ever filed. (Kim Dep. at 61.)
In this legal malpractice action, Defendant served a Request to Admit on Plaintiffs dated September 13, 2005, which asked Plaintiffs to admit that prior to January 1, 1999, Jin had not bitten anyone or acted aggressively toward anyone; was not restrained in the presence of visitors; had not attacked other dogs; and did not display any vicious propensities. (Flanagan Aff., Ex. G (Request to Admit), ¶¶ 4, 6, 8-9, 13.) Plaintiffs never answered or objected to the Request to Admit.
Summary judgment should be awarded if there is no genuine issue as to any material fact and Defendant is entitled to a judgment as a matter of law. Guilbert v. Gardner, 480 F.3d 140, 145 (2d Cir. 2007). A genuine issue exists if a reasonable jury could return a verdict in Plaintiffs' favor. Id. The evidence must be viewed in the light most favorable to Plaintiffs, and all inferences must be drawn in their favor. Id.
I. Plaintiffs Have Admitted the Facts Stated in the Request to Admit
Because Plaintiffs did not respond to Defendant's Request to Admit, dated September 13, 2005, Plaintiffs have admitted the facts stated in the Request.
Federal Rule of Civil Procedure 36 permits a party to serve on another party a written request to admit any relevant fact. Fed. R. Civ. P. 36(a). The fact is deemed admitted unless, within thirty days of service of the request, the party to whom the request is directed serves a written answer or objection.
Id. Any matter thus admitted is conclusively established, unless the court on motion permits withdrawal or amendment of the admission. Id. 36(b). Plaintiffs never answered or objected to Defendant's Request to Admit, and they never moved to withdraw or amend their admission.
Plaintiffs' attorney gave two reasons for the failure to respond: (1) a malfunctioning e-mail system and (2) a paralegal's mistaken belief that the response to Defendant's Local Rule 56.1 Statement was the response to the Request to Admit. (Park Aff. ¶¶ 49-50.) Neither explanation is persuasive. The condition of counsel's e-mail system is not relevant, because the Request to Admit was served by overnight mail. (See Flanagan Reply Aff. ¶ 4.) Regardless of any confusion on the part of Plaintiffs' counsel's staff, Defendant's counsel directly reminded Plaintiffs' counsel about the Request to ...