Root v. Hogan

Carpinello, J. Appeal from an order of the Supreme Court (Ferradino, J.), entered November 12, 2002 in Saratoga County, which granted plaintiffs motion for partial summary judgment. Decedent, allegedly the victim of medical malpractice in 1990, retained defendant attorneys to file suit against the hospital and treating physician. The resultant medical malpractice action filed by defendants was dismissed in 1993 because of their failure to timely serve a complaint and purchase an index number. There is record evidence that defendants concealed this dismissal from decedent until he uncovered the true state of affairs after a search of public court records. Thereafter, the instant legal malpractice action was commenced. This appeal is from an order granting plaintiffs motion for summary judgment on the issue of liability. On the motion, plaintiff submitted supporting affirmations from a duly licensed physician who opined, based upon his review of decedent’s medical records, that decedent’s care deviated from acceptable medical practice. Significantly, the sole opposition to this application came in the form of an attorney affirmation. To prevail on her application, plaintiff had to make a prima facie showing that defendants failed to exercise the degree of skill commonly possessed by members of the legal profession which proximately resulted in damages (see Arnav Indus., Inc. [810] Retirement Trust v Brown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303-304 [2001]). With defendants’ deviation from the proper standard of care patent, the sole remaining issue is the merits of the underlying medical malpractice action (see Tanel v Kreitzer & Vogelman, 293 AD2d 420, 421 [2002]). On this point, defendants’ attorney affirmation was clearly insufficient to rebut the opinion of plaintiff’s medical expert (see Siegel, NY Prac § 281, at 442 [3d ed]). Accordingly, the motion was properly granted. To the extent not herein discussed, defendants’ remaining contentions have been considered and found to be without merit. Cardona, P.J., Mercure, Peters and Spain, JJ., concur. Ordered that the order is affirmed, with costs.