RODRIGUEZ v. ROSS (2005)

In an action to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Ruchelsman, J.), dated August 3, 2004, which granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, the motion is denied, and the complaint is reinstated.

The plaintiff retained the defendants to commence a negligence action to recover damages for personal injuries that he sustained in an automobile accident in 1998.   The plaintiff subsequently commenced this action to recover damages for legal malpractice when the defendants failed to commence a negligence action before the expiration of the statute of limitations.   The defendants moved for summary judgment on the ground that even if an action had been timely commenced, the plaintiff would not have prevailed because of the lack of a serious injury under Insurance Law § 5102, and the Supreme Court granted the motion.

The defendants were not entitled to summary judgment since they failed to make a prima facie showing that the plaintiff did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the subject motor vehicle accident (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 487 N.Y.S.2d 316, 476 N.E.2d 642;  Hoyte v. Epstein, 12 A.D.3d 487, 784 N.Y.S.2d 613).   The defendants' own examining physician recorded some significant limitations in the plaintiff's movement of his cervical and lumbar spines, and his right shoulder, in addition to a positive impingement sign for the right shoulder (see Scotti v. Boutureira, 8 A.D.3d 652, 779 N.Y.S.2d 255).