FKB’s Bain R. Louck’s Wins Appeal Affirming Legal Malpractice Directed Verdict

On October 18, 2017, New York’s Appellate Division, Second Department, affirmed the trial court’s decision granting FKB’s motion for directed verdict.  See Verdi v. Jacoby & Meyers, 2017 N.Y.Slip Op. 07294 (2d Dept. October 18, 2017).  The Appellate Division also affirmed the trial court’s denial of the plaintiff’s belated post-trial motion seeking to vacate.

The legal malpractice action involved the plaintiff’s claim that the defendant law firm was negligent in failing to file a personal injury action against Volvo, the alleged lessor of an automobile that rear-ended the Plaintiff, prior to passage of so-called Graves Amendment.  The Graves Amendment exempts the owner of a leased or rented motor vehicle from liability for personal injuries resulting from the use of such vehicle if the owner: (i) is engaged in the trade or business of renting or leasing motor vehicles; and (ii) did not engage in any negligence or criminal wrongdoing.

FKB’s Patrick J. Brennan represented the defendant law firm at the trial.  Following the close of the plaintiff’s proof on the issue of liability, the Defendants moved for a directed verdict on the grounds that the Plaintiff failed to submit any evidence that the offending vehicle was owned/leased by Volvo.

More than a month later (and well after the statutory deadline to file post-trial briefs), the plaintiff moved for leave to enlarge his time to make a post-trial motion and separately filed a motion seeking judgment on liability in the plaintiff’s favor.  The trial court denied the motion to enlarge the time to make a post-trial motion, and denied the post-trial motion.  Plaintiff appealed.

FKB’s Bain R. Loucks drafted and argued the appeal.  FKB argued that the plaintiff failed to adduce prima facie evidence that the offending vehicle was owned by or leased from Volvo on the date of the accident.  Moreover, given that there was no evidence that the offending vehicle was owned by a commercial lessor that could have been held vicariously liable for the plaintiff’s injuries, prior to the enactment of the Graves Amendment, the plaintiff failed to establish that he would have prevailed in an action against Volvo had one been commenced.  The Appellate Division agreed, and affirmed the trial court’s decision dismissing the action.

If you have any questions about this decision, or the defense of attorneys in general, please contact  Bain R. Loucks.