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Aracelis Polanco, Plaintiff-Appellant v. Greenstein & Milbauer

New York Supreme and/or Appellate Courts Appellate Division, First Department


June 7, 2012

ARACELIS POLANCO, PLAINTIFF-APPELLANT,
v.
GREENSTEIN & MILBAUER, LLP, DEFENDANT-RESPONDENT.

Polanco v Greenstein & Milbauer, LLP

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on June 7, 2012

Gonzalez, P.J., Friedman, Renwick, Manzanet-Daniels, Roman, JJ.

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about May 27, 2011, which, to the extent appealed from, granted defendant law firm's motion to dismiss the amended complaint for failure to state a cause of action, unanimously reversed, on the law, without costs, and the motion denied.

In her amended complaint, plaintiff alleged, among other things, that she was injured when she was struck in the neck by a piece of lumber; that defendant was negligent in urging her to settle the underlying personal injury action and in advising her that an MRI was not necessary and that its results would not lead to a more favorable outcome of her case; that, after settling the case for $20,000, she obtained an MRI showing a disc herniation that required surgical intervention; that she remains permanently disabled; that defendant's negligence proximately caused her to sustain damages by not gaining the fair value for her case; and that she would have been successful in the underlying action had defendants exercised due care. These allegations are sufficient to state a claim for legal malpractice (see Garnett v Fox, Horan & Camerini, LLP, 82 AD3d 435, 435 [2011]; see generally Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083 [2005], lv denied 6 NY3d 701 [2005]). Plaintiff was not required to show a likelihood of success in the underlying action, but was "required only to plead facts from which it could reasonably be inferred that defendant's negligence caused [her] loss" (Garnett, 82 AD3d at 436). Plaintiff plead such facts.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: JUNE 7, 2012

CLERK

20120607

© 1992-2012 VersusLaw Inc.



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