Leavy v. Kramer
| Decision Date | 09 February 1962 |
| Parties | Elizabeth LEAVY v. Charles KRAMER et al. |
| Court | New York Supreme Court |
Samuel B. Weingrad, New York City, for plaintiff.
James I. Lysaght, New York City, for defendants.
In an action to recover damages for the alleged malpractice by a certain attorney in the prosecution of a lawsuit, the plaintiff moves to vacate the defendants' demand for a bill of particulars. The plaintiff contends that the entire demand is improper since it requests particulars concerning the alleged cause of action which the defendants' attorney was negligent in prosecuting.
In McAleenan v. Mass. Bonding & Ins. Co., 232 N.Y. 199, at page 204, 133 N.E. 444 at page 446, the ocurt stated that '* * * one who seeks to hold another responsible for neglect in the conduct of litigation must show that the action which has been neglected would probably have been successful, and therefore that its neglect has directly resulted in damages measured by the value or the amount of the rights which were lost by the default.' It is apparent, therefore, that a plaintiff in an action against an attorney for negligently conducting litigation must show that the original cause of action was good and the actual damages suffered. (Lamprecht v. Bien, 125 App.Div. 811, 110 N.Y.S. 128; see also Hamilton v. Donnenberg, 239 App.Div. 155, 267 N.Y.S. 156.) It is incumbent upon the plaintiff to prove that the original claim would or could have been collected but for the attorney's negligence. (Schmitt v. McMillan, 175 App.Div. 799, 162 N.Y.S. 437; see also Vooth v. McEachen, 181 N.Y. 28, 73 N.E. 488.)
In the case at bar it is apparent that the defendants' demand for a bill of particulars, which among other things concerns itself with the plaintiff's original cause of action, is proper. (See generally Dulberg v. Mock, 1 N.Y.2d 54, 57, 150 N.Y.S.2d 180, 133 N.E.2d 695.) The plaintiff's objections concerning items 13, 14 and 15 are without merit since they merely demand particulars concerning the alleged negligence of the defendants.
Accordingly the motion is in all respects denied.
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