From Casetext: Smarter Legal Research

Leavy v. Kramer

Supreme Court, Special Term, Queens County
Feb 9, 1962
34 Misc. 2d 479 (N.Y. Sup. Ct. 1962)

Opinion

February 9, 1962

Samuel B. Weingrad for plaintiff.

James I. Lysaght 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. Massachusetts Bonding Ins. Co. ( 232 N.Y. 199) the court stated, at pages 204-205, 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 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; see, also, Hamilton v. Dannenberg, 239 App. Div. 155.) 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; see, also, Vooth v. McEachen, 181 N.Y. 28.)

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.) 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.


Summaries of

Leavy v. Kramer

Supreme Court, Special Term, Queens County
Feb 9, 1962
34 Misc. 2d 479 (N.Y. Sup. Ct. 1962)
Case details for

Leavy v. Kramer

Case Details

Full title:ELIZABETH LEAVY, Plaintiff, v. CHARLES KRAMER et al., Defendants

Court:Supreme Court, Special Term, Queens County

Date published: Feb 9, 1962

Citations

34 Misc. 2d 479 (N.Y. Sup. Ct. 1962)
226 N.Y.S.2d 349

Citing Cases

McDow v. Dixon

A client suing his attorney for malpractice not only must prove that his claim was valid and would have…

Titsworth v. Mondo

For all of the foregoing reasons, the release by the plaintiff in the underlying action and the failure to…