Detoni v. McMinkens

• Decision Date: 22 February 2017
• Citation: 48 N.Y.S.3d 208,147 A.D.3d 1018
• Parties: Alessandra DETONI, appellant-respondent, v. Jacqueline McMINKENS, et al., respondents-appellants.
• Court: New York Supreme Court — Appellate Division

147 A.D.3d 1018

48 N.Y.S.3d 208

Alessandra DETONI, appellant-respondent,

v.Jacqueline McMINKENS, et al., respondents-appellants.

Supreme Court, Appellate Division, Second Department, New York.

Feb. 22, 2017.

Finz & Finz, P.C., Mineola, NY (Joshua B. Sandberg of counsel), for appellant-respondent.

Garcia & Stallone, Deer Park, NY (Karl Zamurs of counsel), for respondents-appellants.

WILLIAM F. MASTRO, J.P., MARK C. DILLON, RUTH C. BALKIN and JOSEPH J. MALTESE, JJ.

In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals, as limited by her notice of appeal and brief, from stated portions of an order of the Supreme Court, Queens County (Lane, J.), dated September 18, 2014, and the defendants cross-appeal, as limited by their notice of appeal and brief, from so much of the same order as granted that branch of the plaintiff's motion which was for leave to reargue her opposition to their motion for summary judgment dismissing the complaint and, upon reargument, vacated a prior order of the same court dated March 5, 2014, granting their motion for summary judgment and, thereupon, denied their motion for summary judgment.

ORDERED that the appeal by the plaintiff is dismissed, as the plaintiff is not aggrieved by the portions of the order appealed from (see CPLR 5511 ); and it is further,

ORDERED that the order dated September 18, 2014, is affirmed insofar as cross-appealed from; and it is further,

ORDERED that one bill of costs is awarded to the plaintiff.

On November 19, 2005, the plaintiff allegedly sustained serious injuries as a result of a motor vehicle accident in Queens. She allegedly retained the defendants on December 15, 2005, to represent her in a personal injury action against the owner and operator of the motor vehicle that struck her vehicle, but the defendants failed to commence an action before the expiration of the statute of limitations. The plaintiff commenced this action, inter alia, to recover damages for legal malpractice.

The defendants moved for summary judgment dismissing the complaint on the ground that, even if they were negligent in failing to timely commence the underlying personal injury action, the plaintiff would not have prevailed because she did not sustain a serious injury within the meaning of Insurance Law § 5102(d) as a result of the accident. In an order dated March 5, 2014, the Supreme Court granted the defendants' motion for summary judgment dismissing the complaint.

Thereafter, the plaintiff moved for leave to reargue or renew her opposition to the defendants' motion, arguing, among other things, that the Supreme Court overlooked or misapprehended the facts or law in mistakenly determining that the defendants established, prima facie, that the plaintiff did not sustain a serious injury under the 90/180–day category of Insurance Law § 5102(d). In the order appealed from, the Supreme Court granted that branch of the plaintiff's motion which was for leave to reargue. Upon reargument, the court vacated its prior order dated March 5, 2014, and thereupon, denied the defendants' motion for summary judgment dismissing the complaint.

A motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion" (CPLR 2221[d][2] ). "Motions for reargument are addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or misapprehended the facts or law or for some [other] reason mistakenly arrived at its earlier decision" (Mudgett v. Long Is. R.R., 81 A.D.3d 614, 614, 915 N.Y.S.2d 649 [internal quotation marks omitted]; see Grimm v. Bailey, 105 A.D.3d 703, 704, 963 N.Y.S.2d 277 ). Here, the Supreme Court providently exercised its discretion in granting that branch of the plaintiff's motion which was for leave to reargue, since the plaintiff demonstrated that the Supreme Court mistakenly arrived at its earlier determination granting the defendants' motion for summary judgment dismissing the complaint (see Mudgett v. Long Is. R.R., 81 A.D.3d at 614, 915 N.Y.S.2d 649 ).

"In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge...