Gross v. Eannace

• Decision Date: 18 December 1964
• Citation: 255 N.Y.S.2d 625,44 Misc.2d 797
• Parties: Barton BROSS and Albert Gross, Plaintiffs, v. Sal J. EANNACE, Defendant. Sal J. EANNACE, Defendant and Third-Party Plaintiff, v. Jacob M. SHAPIRO, Third-Party Defendant.
• Court: New York Supreme Court

Page 625

255 N.Y.S.2d 625

44 Misc.2d 797

Barton BROSS and Albert Gross, Plaintiffs, v. Sal J. EANNACE, Defendant.

Sal J. EANNACE, Defendant and Third-Party Plaintiff, v. Jacob M. SHAPIRO, Third-Party Defendant.

Supreme Court, Special Term, Nassau County, Part I.

Dec. 18, 1964.

William J. Steinbreacher, Mineola, for plaintiffs.

Dicker & Reich, New York City, for third-party defendant.

Sal J. Eannace, Utica, for defendant and third-party plaintiff.

THEODORE VELSOR, Justice.

Motion pursuant to CPLR 3211(a)(7) to dismiss the complaint as insufficient is granted.

In this action for malpractice the defendant, an attorney at law, allegedly neglected to prosecute an action which the plaintiffs had against Cornell University. The complaint alleges that the plaintiff Albert Gross, while a student at Cornell University, was injured when he fell into Cascadilla Gorge. The date of the mishap; the location of the dangerous condition on the school campus; the nature of the defect; the act or acts of negligence are not pleaded but it is merely pleaded that the plaintiff fell 'by reason of the negligent maintenance by said Cornell University of the paths or approaches' to the Gorge.

As stated in Schmitt v. McMillan, 175 App.Div. 799, 801, 162 N.Y.S. 437, 'In an action of this character the plaintiff must allege in his complaint and prove at the trial that but for the negligence of the attorney the plaintiff's claim could or would have been collected. (Vooth v. McEachen, 181 N.Y. 28, 73 N.E. 488; Lamprecht v. Bien, 125 App.Div. 811, 110 N.Y.S. 128). It being necessary for the plaintiff to allege and prove these facts, it necessarily follows that sufficient facts must be set forth to show that the plaintiff had a good cause of action against whom the claim was asserted' (emphasis supplied). See also Leavy v. Kramer, 34 Misc.2d 479, 226 N.Y.S.2d 349; Sikora v. Steinberg, 40 Misc.2d 649, 243 N.Y.S.2d 766, aff'd. 20 A.D.2d 852, 249 N.Y.S.2d 401. The CPLR (3013) has not eliminated the need to be factual (Kramer v. Loeb Rhoades & Co., 20 A.D.2d 634, 246 N.Y.S.2d 243).

In addition to not alleging facts to show a good cause of action against Cornell, the plaintiffs have not submitted an affidavit to show the merit of that claim. Such affidavit is necessary in order to get permission to replead (CPLR 3211(e)).

The defendant movant has buttressed his motion with an affidavit as permitted by CPLR 3211(e) to show that after he was retained by the attorney of record, Jacob M. Shapiro, Esq., to act as trial counsel for the plaintiffs in Tompkins County, the attorney of record was kept informed by the Clerk of the Supreme Court of Tompkins County or by Mr. Justice Zeller regarding the necessity for a trial when the cause was reached in October 1962 even though the defendant was then actually engaged in a trial in Oneida County which would...