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[*1]


Decided on February 28, 2007
Supreme Court, Kings County

28057/04
Mark I. Partnow, J.
Upon the foregoing papers: (1) defendants/third-party plaintiffs Alexander Goldin (Goldin), Julia Rivin (Rivin) and Golden & Rivin, P.C. (G&R, or defendant law firm) move, (a) pursuant to CPLR 3212, for an order granting summary judgment dismissing the plaintiff's complaint, and (b) for an order granting a default judgment as against third-party defendants Bruce S. Cantin, P.C. (the Cantin firm) and Bruce S. Cantin. Individually (Cantin); and (2) plaintiff Anthony Julien (Julien) cross-moves, pursuant to CPLR 3212, for an order granting summary judgment determining, in his favor, that defendants committed legal malpractice.
BACKGROUND
[*2]The instant motions arise out of a lawsuit commenced by plaintiff to recover damages based upon G&R's alleged malpractice in connection with a personal injury suit in which G&R represented plaintiff. The facts of that underlying lawsuit are as follows:
On March 31, 1998, Julien was the operator of a motor vehicle that was struck in the rear by
another motor vehicle that was owned by Adir One, Inc. (Adir) and operated by Dovber Lipskier (Lipskier).[FN1] It was subsequently learned that the vehicle was rented by Shmuel Kaminezki (Kaminezki) from Adir, and that Lipskier was not an authorized driver under the terms of the rental agreement.
On April 3, 1998, Julien retained G&R to represent him in recovering damages for personal injuries sustained as a result of said accident. By letter dated June 16, 1998, G&R put New York Central Mutual Fire Insurance Company (New York Central) on notice of Julien's claim for uninsured motorist benefits. New York Central acknowledged receipt of said notice of claim by letter dated June 24, 1998, although they opposed and denied said claim.
G&R subsequently commenced a lawsuit, naming Adir and Lipskier as defendants, by filing a summons and complaint on or about March 16, 1999. Issue was joined by service of an answer. Thereafter, G&R prepared and served a bill of particulars, as well as two supplementary bills of particulars, alleging that plaintiff sustained injuries to his neck, lower back, right knee and shoulder.
Lipskier was deposed on December 13, 2000. He testified that he was a resident of Canada, and was 19 years old on the date of the accident. He further testified that he entered the home of his brother-in-law, Kaminezki, while the latter was not at home, took the car keys which had been left on a table, and, without the knowledge or consent of the latter, operated the car and became involved in the accident.
By Notice of Motion dated August 29, 2001, counsel for Adir and Lipskier filed a motion for summary judgment wherein they sought dismissal of the complaint. The bases for said motion were: (1) the non-permissive operation of the vehicle by Lipskier; and (2) the allegation that plaintiff failed to sustain a serious injury within the meaning of Insurance Law

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