On January 18, 2023 an appeals court reversed a Suffolk County, Supreme Court of New York Judge who had dismissed a legal malpractice claim holding that the law firm had not met its burden of proof on a pre-trial motion for summary judgment. The underlying case involved a sanitation worker/pedestrian who was struck by a car while loading a garbage truck. The plaintiff retained an attorney who quickly settled the claim with the owner/driver of the car for their full $50,000 auto insurance policy coverage. However, because there was a workers compensation lien that had to be repaid (WC paid plaintiff's medical expenses and lost wages)- the client received zero compensation and his attorney (who received $16,000+ out of the settlement fund) said the client actually still owed the law firm $45.00. A second law firm was retained by the plaintiff who secured the $50,000 supplementary uninsured motorist's coverage from the auto policy on the garbage truck. (No explanation provided on who identified SUM carrier or if there was a defense on notice or consent.) Upset, the plaintiff sued his first attorney claiming that he departed from accepted legal practices for failing to pursue a recovery from the personal assets of the driver/owner, as well as the $50,000 SUM coverage.

For the plaintiff to succeed on his legal malpractice claim at trial he must prove that he would have won his case and have collected money in excess of the $100,000 total settlements received from the car driver/owner and his employer's SUM policy, but for the negligence of his attorney. The appellate court correctly restored the dismissed legal malpractice action because when the law firm filed a motion for summary judgment, they assumed the burden of proof on the collectability issue. In other words, the law firm as the movant had to submit proof that any judgment entered against the driver/owner, seeking their personal assets, would have been fruitless. The question to be addressed at trial--was the owner and driver of the car judgment proof? If so, the plaintiff will lose the trial. Chicas v Cassar, 2023 WL 219618