Hector Serulle v. Dario, Yacker,
Submitted by New Jersey Personal Injury Lawyer, Jeffrey Hark.
In October 2009, Serulle allegedly tripped and fell on a sidewalk abutting private home owned by Adrian Sosa. Serulle alleged he tripped on loose stone on top of the side walk. Serulle also claimed he tripped because of the height differential caused by a tree root beneath the sidewalk.
When Defendants took Sosa’s deposition, he testified he owned the residence for ten year. Sosa denied making any repairs to the sidewalk or attempting to even the height differential. The trial judge found Sosa enjoyed immunity as a homeowner for injuries occurring on a public sidewalk abutting his property. The judge found a lack of evidence Sosa did repair or made the property more dangerous than it was. The judge entered a direct verdict in favor of Sosa. Following the verdict, Serulle filed a legal malpractice claim against his attorney. The complaint stated defendants “failed to conduct a proper investigation and discovery, both prior to the institution of litigation, and/or during the litigation, to determine the construction, repairs, and remediation of the hazardous condition of the sidewalk of the Sosa property.”
Serulle retained Vivian Goldblatt of Arch Forensics, LLC who opined the repairs were improperly made to the sidewalk. Goldblatt’s report and deposition he mentioned the sidewalk was made with Quikrete, which was the wrong construction material to use. Defendants filed a motion for summary judgment, which the motion judge granted. The judge stated in order to succeed in his malpractice claim, “Serulle had to prove his underlying negligence claim against Sosa.” The judge concluded Serulle’s lawyers did not establish these facts and his counsel cannot be heard to argue about his prior counsel should have been able to do so.
On appeal, Serulle argues defendants “failed to conduct basic discovery until after the discovery end date, and only then conducted a deposition of Sosa.”Serulle argues Goldblatt’s deposition testimony supported Sosa had negligently performed repairs on the sidewalk. Serulle asserts there was enough of a dispute in fact to not grant summary judgment to defendants. A claim for “[l]egal malpractice is a variation on the tort of negligence” relating to an attorney’s representation of a client. Garcia v. Kozlov, Seaton, Romanini & Brooks, PC, 179 N.J. 343, 357 (2004). To establish a prima facie case of legal malpractice, a plaintiff must demonstrate:
- the existence of an attorney-client relationship creating a duty of care upon
the attorney to the plaintiff,
- the breach of that duty by the attorney, and
- such breach was the proximate cause of the damages sustained by the plaintiff.
The Appellate Court finds plaintiff’s inability to identify the age of the original sidewalk, the age
of the repair, and Sosa’s role in making the alleged repair failed to prove the underlying
negligence case. The record lacks any evidence to demonstrate further investigation would have
uncovered evidence of Sosa’s liability. Serulle lacked a cause of action for malpractice against
defendants, and summary judgment was appropriate.