Gibbs v. Singer , 604 NYS2d 478 ( 1993 )

OPINION OF THE COURT

Joseph P. Torraca, J.

On or about March 25, 1988 plaintiff Barry Gibbs was convicted of the crime of murder in the second degree. His conviction was later affirmed on appeal to the Appellate Division, Second Department. He then retained and paid defendant Gino Josh Singer to apply for leave to appeal to the New York Court of Appeals. Mr. Singer made such application and obtained such leave. However, by reason of his subsequent failure to timely file papers on plaintiff’s behalf, the appeal was dismissed. Subsequent efforts to reinstate such appeal was denied.

Plaintiff commenced this action requesting monetary damages from defendant resulting from such defendant’s negligent failure to timely file the documents required by the Court of Appeals. Mr. Gibbs now moves for an order granting summary judgment in his favor.

The proofs submitted establish that defendant was negligent in failing to timely file the appropriate papers in the Court of Appeals in response to its 20-day notice pursuant to Rules of the Court of Appeals (22 NYCRR) § 500.9 (b), thereby causing a dismissal of plaintiff’s appeal. Summary judgment is therefore granted to plaintiff with respect to the question of defendant’s liability. Plaintiff is directed to place this matter on the Trial Calendar pursuant to the appropriate rules for the purpose of assessment of damages.