58 A.D.2d 683 | N.Y. App. Div. | 1977
— Appeal from an order of the Supreme Court in favor of the plaintiff, entered July 28, 1976 in Albany County, which granted a motion by defendant at the close of the plaintiff’s case to dismiss the complaint by reason of the failure of the plaintiff to make out a prima facie case. This action arises out of the alleged malpractice of the defendant, an attorney who was retained by the plaintiff, to defend an action brought against the plaintiff by Robert Kirkpatrick, individually and on behalf of Ulster Erectors, Inc. On May 29, 1973 a default judgment was entered by Kirkpatrick against the plaintiff. In July, 1973 the third-party defendant herein and the present counsel of the plaintiff made a motion to open the default judgment. That motion was "denied without prejudice to renew upon production of more specific evidence that defendant has a meritorious defense”. Ten months later when another motion was made to vacate the default judgment, the motion was again denied on the ground that the plaintiff did not present a sufficient affidavit of merit. This action followed. It was found and is not disputed that defendant was negligent in neither answering nor otherwise responding to the complaint against plaintiff in the Kirkpatrick action. The trial court dismissed the action on the ground that the plaintiff failed to make a showing that a meritorious defense was available in the underlying Kirkpatrick action. The decision of the trial court should be affirmed. It is settled law in New York that in an action against an attorney for alleged malpractice, the plaintiff must show not only
