McKenna v. Forsyth & Forsyth

• Decision Date: 07 February 2001
• Court: New York Supreme Court — Appellate Division
• Parties: KEVIN C. McKENNA et al., Appellants,<BR>v.<BR>FORSYTH & FORSYTH et al., Respondents. (Appeal No. 4.)

280 A.D.2d 79
720 N.Y.S.2d 654

KEVIN C. McKENNA et al., Appellants,
v.
FORSYTH & FORSYTH et al., Respondents. (Appeal No. 4.)

GREEN, J.

February 7, 2001.

[280 A.D.2d 80]

Davidson, Fink, Cook, Kelly, Rochester (Paul D. Kelly of counsel), for appellants.

Damon & Morey, L. L. P., Buffalo (Michael J. Willett of counsel), for respondents.

PIGOTT, JR., P.J., HAYES and LAWTON, JJ., concur.

OPINION OF THE COURT

GREEN, J.

To establish a prima facie case of legal malpractice, the client must show that his or her attorney failed to exercise the degree of skill commonly exercised by an ordinary member of the legal community and that the client sustained damages as a direct result of the attorney's actions (see, Marshall v Nacht, 172 AD2d 727, 727-728; Marquez v Ross Dev., 162 AD2d 1011). When the attorney's actions result directly in the loss of a cause of action, "the measure of damages is generally the value of the claim lost" (Campagnola v Mulholland, Minion & Roe, 76 NY2d 38, 42). In this appeal, we are called upon to decide whether "the value of the claim lost" is equivalent to the amount the client would have collected had the attorney not been negligent. We hold that, when a cause of action is lost as the result of the attorney's negligence, the client's injury is measured by the amount that would have been collected on that lost cause of action. We further hold that the client bears the burden of proving that amount.

I

On December 26, 1991, Kevin C. McKenna (plaintiff) was injured when the vehicle he was operating was struck by a vehicle owned and operated by Scott Schoenhardt. Plaintiffs thereafter retained defendants to represent them in connection with the accident. Defendants failed to commence an action prior to the expiration of the Statute of Limitations, and plaintiffs commenced this action for legal malpractice. In their complaint, plaintiffs allege that defendants were negligent in failing to commence an action against Schoenhardt in a timely manner.

[280 A.D.2d 81]

Subsequent to the filing of the note of issue in December 1998, the parties moved and cross-moved for various forms of relief. The orders entered on those motions and cross motions defined the issues to be litigated and the procedure to be followed at the trial. Upon renewal of a prior motion, Supreme Court granted summary judgment to plaintiffs on the issue of defendants' liability for malpractice, conditioned upon a finding by the jury that plaintiff suffered a serious injury within the meaning of Insurance Law § 5102 (d) as a result of the automobile accident. The court denied plaintiffs' motion in limine to preclude defendants from calling Schoenhardt as a witness and from introducing evidence of Schoenhardt's ability to pay damages, including evidence of insurance coverage. The court also directed a bifurcated trial. In the first phase the jury was to find liability and damages arising from the automobile accident, and in the second phase it was to find the amount that would have been collectible from Schoenhardt. Finally, the court denied plaintiffs' motion to amend the bill of...