Shepps Receives Favorable Decision Granting Summary Judgment

Wendy B. Shepps

Wendy Shepps, Of Counsel to the firm, recently received a favorable decision granting summary judgment dismissing a legal malpractice action asserted against our client in its entirety.  Plaintiff had alleged that our client committed legal malpractice, in their representation of plaintiff at an underlying hearing, in which he sought an award of a Performance Duty Disability Retirement from the NYS Department of Corrections.  Plaintiff alleged that the attorney defendants neglected to submit certain documents into evidence at the underlying hearing, resulting in the denial of the benefits sought.

New York Supreme Court Judge Slobod granted our motion addressing all of the issues raised in the claim and in our motion.

In granting our motion, Judge Slobod held that the letter from plaintiff’s treating physician, which plaintiff alleged that the defendants neglected to submit into evidence at the underlying hearing, was “not available at the time of the hearing” and thus could not have been submitted into evidence.

Further, the report of a nurse practitioner who attended the independent medical examination with the plaintiff in the underlying action did “not controvert the IME report”.   Thus, Judge Slobod held that the defendant attorneys  did not commit malpractice in neglecting to submit these documents into evidence at the underlying hearing.  The Judge noted plaintiff’s failure to submit an expert opinion in opposition to our motion, which was supported by the expert affidavit of John Black, Esq.

(Wendy initially secured dismissal of the action pre-answer pursuant to CPLR 3211, but the Appellate Division, Second Department reinstated the complaint finding that the documentary evidence submitted in support of the motion did not conclusively refute the plaintiff’s allegations).