DAMSTETTER v. MARTIN (1998)

Plaintiff commenced this action to recover damages for legal malpractice based upon defendant's alleged failure timely to commence an action for personal injuries arising from an automobile accident.   Supreme Court granted defendant's motion for summary judgment dismissing the complaint.   The court concluded that the negligence cause of action was time-barred pursuant to CPLR 214(6).   The court further concluded that defendant was entitled to summary judgment dismissing the breach of contract cause of action on the ground that plaintiff would not have prevailed in the underlying personal injury action and therefore sustained no damage as the result of defendant's alleged breach.

Defendant met his burden of establishing as a matter of law that plaintiff would not have prevailed in the underlying action because he did not sustain a serious injury as defined in Insurance Law § 5102(d).   In response, plaintiff submitted unsworn medical reports that were not in admissible form (see, Grasso v. Angerami, 79 N.Y.2d 813, 580 N.Y.S.2d 178, 588 N.E.2d 76;  Pagan v. Gondola Cab Corp., 235 A.D.2d 251, 652 N.Y.S.2d 277) and the affidavit of a physician consisting of unsubstantiated speculation concerning the causal relationship between the accident and plaintiff's condition several years after the accident (see, Andre v. Seem, 234 A.D.2d 325, 650 N.Y.S.2d 794;  Waaland v. Weiss, 228 A.D.2d 435, 643 N.Y.S.2d 635;  Lichtman-Williams v. Desmond, 202 A.D.2d 646, 609 N.Y.S.2d 296, lv. dismissed 84 N.Y.2d 849, 617 N.Y.S.2d 138, 641 N.E.2d 159) and conclusory assertions tailored to meet the statutory requirements (see, Gaddy v. Eyler, 79 N.Y.2d 955, 958, 582 N.Y.S.2d 990, 591 N.E.2d 1176;  Giannakis v. Paschilidou, 212 A.D.2d 502, 622 N.Y.S.2d 112).   That affidavit lacks probative value and is insufficient to raise a triable issue of fact (see, Mickelson v. Padang, 237 A.D.2d 495, 655 N.Y.S.2d 592;  Attanasio v. Lashley, 223 A.D.2d 614, 615, 636 N.Y.S.2d 834).

Although the court rejected defendant's contention that the breach of contract action is time-barred by virtue of the 1996 amendment to CPLR 214(6) (see, Romeo v. Schmidt [appeal No. 1], 244 A.D.2d 860, 665 N.Y.S.2d 228), it granted defendant all of the relief he sought.   Defendant, therefore, was not aggrieved by the order and his cross appeal does not lie (see, CPLR 5511;  Flower City Insulation Sales & Contrs. v. Board of Educ.-Marcus Whitman Cent. School Dist., 190 A.D.2d 1018, 1019, 594 N.Y.S.2d 473).

Cross appeal unanimously dismissed and amended order affirmed without costs.

MEMORANDUM: