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 § 5102 (d). That motion was granted in its entirety, without opposition, by Order dated November 15, 2001 of Justice David I. Schmidt.

Shortly prior thereto, G&R had filed a Demand for Arbitration of plaintiff's uninsured motorist claim, dated September 7, 2001 and signed by Rivin, against New York Central. On September 26, 2001, New York Central, by Notice of Petition, commenced a special proceeding to stay arbitration. The Petition to Stay was opposed by Cantin, in his capacity as of counsel to G&R, as well as by counsel to Adir and Chrysler Insurance Co., the latter allegedly having provided insurance coverage for the vehicle owned by Adir at the time of the subject accident. That petition was denied by order, without hearing, of Justice Martin [*3]Schneier dated November 1, 2001, upon a judicial finding that the driver of the vehicle did not have permission or consent of the owner to operate the vehicle. However, by Order dated October 28, 2002, the Appellate Division, Second Department reversed the order of Justice Schneier, and remanded the matter for a hearing on the issue of whether the offending vehicle was insured at the time of the accident.

Cantin notified plaintiff that the Cantin Firm was now representing plaintiff in connection with his claims arising out of the subject accident. He further requested that Supreme Court hold a framed issue hearing. Thereafter, by letter dated March 1, 2004, plaintiff attempted to discharge G&R and retained a different law firm to represent him. However, plaintiff's counsel purportedly refused to acknowledge a charging lien or lien on any recovery owed to G&R, and, consequently, G&R refused to execute the Consent to Change Attorney form as proffered. Plaintiff never moved to have G&R discharged.

The framed issue hearing was scheduled for June 28, 2004, but was not conducted until August 18, 2004.^[FN2] Denying New York Central's petition, JHO Edward Alfano found that the Adir vehicle was not insured at the time of the subject accident because that vehicle was operated non-permissibly. He further found that there was never any insurance coverage for Lipskier.

On September 4, 2004, G&R was served with a summons and complaint whereby the instant lawsuit, alleging malpractice and breach of contract, was commenced. The third-party action was commenced by filing of a summons and complaint dated May 19, 2005.

DEFENDANTS' CONTENTIONS

On the instant motion, defendants initially take the following positions:

(1) defendant law firm is a professional limited liability company, and there is no basis to attribute liability to the individual defendants. Furthermore, Rivin performed no legal services for plaintiff other than (a) signing the retainer statement whereby defendant law firm retained, and (b) establishing contact in the early stages of litigation with Adir's insurer in an effort to effect settlement. Although Goldin played a significant role in representing plaintiff, no act or omission on his part caused plaintiff's alleged damages;

(2) G&R entered into a contract with the Cantin firm on April 10, 2001, whereby the latter agreed to oversee all cases in which G&R had been retained where a summons and complaint or a demand for arbitration on an uninsured motorist claim had been filed; that pursuant to that agreement, the Cantin firm handled all proceedings relevant to plaintiff's claims, and that the Cantin firm made the decision not to oppose Adir's summary judgment motion; and

(3) on May 29, 2003, plaintiff was involved in a subsequent accident and sustained injuries to his neck and back, as a result of which he recovered a settlement in the amount of $95,000. [*4]

Defendants further contend that plaintiff cannot make a prima facie showing that he satisfies all elements of a legal malpractice claim, namely: (1) proof of the attorney's negligence in that the attorney failed to exercise that degree of skill commonly exercised by an ordinary member of the legal community; (2) a showing that the negligence was the proximate cause of the injury; and (3) evidence of actual damages (see Caires v Siben & Siben, 2 AD3d 383, 384 [2003]; see also Russo v. Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, 301 AD2d 63, 67 [2002]). In this regard, defendants contend that they properly filed a demand for arbitration, and plaintiff's damages are speculative unless and until he arbitrates his uninsured motorist claims. Further, in addressing the serious injury threshold issue, defendants argue that threshold was not the basis for Justice Schmidt's granting summary judgment to Adir, and does not prevent him from going forward to arbitration. As a result, defendants argue that although plaintiff has a viable source of recovery in the form of arbitration, he is improperly pursuing the within lawsuit as an alternate form of recovery.

Defendants further assert that plaintiff cannot demonstrate, as he must, that he would have succeeded in the underlying litigation because he would not be able to show that he sustained a serious injury within the meaning of Insurance Law § 5102 (d).

Finally, defendants allege that although a third-party summons and complaint were served on the Cantin Firm and Cantin, individually, on June 1, 2005, no answer has been received, and the time within which the named third-party defendants could answer has expired. Accordingly, they seek a default judgment on their third-party cause of action.

PLAINTIFF'S CONTENTIONS

In opposition to defendants' motion and in support of his cross motion, plaintiff initially refers to the verified bill of particulars prepared on his behalf, wherein it stated that plaintiff sustained, as serious and permanent injuries: (1) lumbosacral radiculopathy with bulging disc at L4-L5 level; (2) cervical radiculopathy with multiple herniated discs, including impingement, at C4-C5, C5-C6 and C6-C7 levels; (3) trauma to the knee including a horizontal linear tear within the posterior horn of the medial meniscus, with subsequent surgery; and (4) traumatic tear to plaintiff's right shoulder of the mid-portion of the supraspinatus tendon, surgery having been indicated. Contending that such injuries satisfy the serious injury threshold, plaintiff assails, as inconsistent, defendants' current position that he could not, in fact, avoid dismissal of his underlying cause of action on threshold grounds, and asserts that a recovery of $25,000 (the maximum he would be entitled to if his uninsured motorist claim were arbitrated in his favor) falls far short of what he would be entitled to were he to have had his day in court. In describing the injuries he sustained as a result of the accident, plaintiff alleges that following the accident, he commenced a course of chiropractic treatment that lasted approximately nine months, and that up until the date of his deposition, plaintiff was still treating for the injuries he sustained in the accident. He further alleges that during the course of treatment, he was referred to Dr. Smith, identified as a bone specialist, for his right knee and right shoulder, and that Dr. Smith eventually performed surgery on [*5]plaintiff's right knee at Brookdale Hospital. Plaintiff alleges that he developed arthritis in that knee.

As to the circumstances which gave rise to his retaining G&R, plaintiff alleges that shortly after the accident and just before he entered the ambulance, he was given a card with the name "Rockaway" and the telephone number of G&R ^[FN3]. The day after the accident, plaintiff called and spoke to Goldin. Subsequently, the two met, and Goldin, who purportedly told plaintiff that his damages were worth over $5 million, agreed to represent plaintiff. Plaintiff further claims that: (1) no-one from G&R ever discussed a summary judgment motion with him, and that he had been continually assured by both G&R and Cantin that everything was going well with his lawsuit; (2) he was never advised that an uninsured motorist claim existed; and (3) whenever he attempted to obtain information regarding his lawsuit from Goldin, the latter would avoid him. As a result of his dissatisfaction with the quality of representation he was receiving, plaintiff fired G&R in or about March of 2004.

Plaintiff thus contends defendants fail to overcome any showing that (1) the question of whether Lipskier drove the offending vehicle with the permission and consent of Adir was an "obvious" issue of fact that required opposition but was never opposed, and that such lapse triggered the chain of events that restricted plaintiff uninsured motorists arbitration; (2) the branch of the underlying summary judgment motion that was predicated on serious injury grounds would have failed had defendants interposed opposition, since plaintiff's injuries, when evaluated as of September, 2001 (the time of the making of said motion), were clearly serious injuries within the meaning of Insurance Law § 5102 (d) and were supported by competent medical proof. As additional supporting proof, plaintiff refers to the following testimony as rendered at depositions:

Goldin's testimony

Referring to Goldin's deposition testimony of August 8, 2005, plaintiff notes that as of 1998, Goldin, who was admitted to the Bar in 1996, had handled approximately 100 motor vehicle cases, 35 to 40 of which progressed into suit. Depositions were conducted in 5 or 6 of those cases. Goldin conducted approximately three of those depositions, and had conducted 2 or 3 defendant depositions. As of 1998, he had never tried a motor vehicle accident case, and as of the date of his deposition, Goldin had conducted 1 motor vehicle accident liability trial, but none that had also included damages. Through 1999, G&R's practice was to engage the Cantin Firm as counsel for the purpose of conducting trials. [*6]

Plaintiff further cites to that part of Goldin's testimony where he indicated that early in the litigation, an issue was raised as to whether Lipskier was an authorized operator of the vehicle. Unable to recall if he addressed the permissive use issue, which he characterized as being a "major issue", and further unable to recall if a deposition of Adir was ever conducted, Goldin testified that he deferred the question of permissive use of the offending vehicle to his "of counsel," Cantin. Plaintiff further notes that Goldin testified that he had no recollection of ever requesting or seeing the rental agreement for the offending vehicle, and charges that G&R's failure to depose Kaminezki, the renter of the vehicle, deprived plaintiff of an opportunity to rely on the presumption of consent as provided under Vehicle and Traffic Law § 388,^[FN4] by introducing the testimony of anyone other than Lipskier.^[FN5]

In addition, plaintiff cites Goldin's deposition testimony wherein he stated that: (1) in discussions between him and Cantin, it was their professional opinion that any threshold issue need not be responded to because the motion would be granted on the issue of permissive use; and (2) in any event, that portion of the litigation against Lipskier was moot, and no further action was ever taken.

Finally, Julien notes that Goldin testified that it was his opinion that Julien would have met the serious injury threshold.

Cantin's testimony

Plaintiff goes on to cite Cantin's testimony, rendered at his non-party deposition, wherein he stated that: (1) prior to his obtaining the notice of petition to stay arbitration, which Goldin referred to him for the purpose of interposing opposition, he did not recall having done any work on Julien's lawsuit; (2) he was unaware of the fact that Adir's summary judgment motion was granted without opposition until being advised of same by the attorney who represented Lipskier, and he might have told Goldin that "he had a problem" concerning the fact that the motion was submitted unopposed; and (3) he never spoke to Julien about the summary judgment motion never having been opposed, stating that it was not his place to tell [*7]him "that his case got screwed up".^[FN6] Finally, plaintiff notes that Cantin opined that plaintiff met the serious injury threshold, based on his torn meniscus with surgery and its effect on plaintiff's life.

Zilberg's testimony

Michael Zilberg (Zilberg), the attorney who was hired by G&R to appear at the framed issue hearing on August 18, 2004, testified at a deposition in connection with the instant lawsuit pursuant to subpoena. Plaintiff cites his testimony to the effect that he was instructed to observe, and to not ask any questions, at said hearing, that he did not recall seeing any paperwork from G&R prior to the hearing, and that he was never advised that Julien had fired G&R.

Johnson's testimony

Robert E. Johnson is an attorney who acted as per diem counsel for G&R, and who conducted the deposition of Lipskier. Plaintiff contends that although Johnson prepared a written report wherein he stated that "I found the defendant's testimony regarding lack of permissive use incredible,"^[FN7] Goldin did nothing to investigate Johnson's assessment.

DEFENDANTS' REPLY AND OPPOSITION TO CROSS MOTION

In reply to plaintiff's opposition to defendants' motion and in opposition to his cross motion, defendants contend that until plaintiff pursues his remedies by arbitrating his uninsured motorist claim, his damages remain speculative. In this vein, they argue that the defendant law firm was retained for the purpose of obtaining, and in fact procured, a means of recovering damages, which, in the form of uninsured motorist coverage, it was successful in doing. Defendants aver that plaintiff has failed to establish, beyond speculation, that even if his complaint in the underlying personal injury action withstood the summary judgment motion, he would have recovered damages after trial, or that any damages he might have recovered would exceed the damages he can yet recover by way of his unarbitrated uninsured motorist claim.

Defendants further assert that the court should disregard plaintiff's argument that the uninsured motorist claim established on his behalf by defendant law firm was done so only for the purpose of avoiding liability for the outcome of the present lawsuit, noting that such claim was initiated several months prior to the commencement of the personal injury lawsuit.Defendants also argue that their decision not to join Kaminezki as a defendant was [*8]immaterial, since he was neither the owner nor operator of the vehicle. They further characterize, as speculative, plaintiff's argument regarding consent, citing the absence of evidence with regard thereto, and argue that their pursuit of the uninsured motorist claim, in the reasonable belief that additional discovery "at the expense of the plaintiff would not undo the substantial evidence against permissive use presented by the testimony of the responsible operator," was proper.

In any event, defendants contend that plaintiff is collaterally estopped from "re-litigating" the issue of permissive use of the offending vehicle, since: (1) plaintiff had the opportunity to be represented at the framed issue hearing, but had already discharged defendant law firm; and (2) plaintiff was on notice of the impending framed issue hearing, and incoming counsel refused to attend the hearing.

Defendants further contend that plaintiff's arguments concerning the likelihood of his overcoming a summary judgment motion on serious injury threshold grounds are speculative, since the physician who examined plaintiff did so after the second accident, and his opinions take no account of the injuries allegedly sustained as a result of the second accident nor of plaintiff's physical condition prior thereto. They go on to dispute plaintiff's contention that his knee and shoulder injuries constitute serious injuries, contending, as to the former, that his condition was degenerative and that, as to the latter, that plaintiff has not had surgery or undergone any treatment for a torn right shoulder tendon. They also: (1) argue that plaintiff is estopped from claiming that he sustained permanent injuries as a result of the subject accident, because in settling the lawsuit for injuries allegedly sustained in the second accident, he alleged that he had completely recovered from injuries sustained as a result of the earlier accident; (2) challenge, as a manufactured issue of fact, any finding that plaintiff suffered herniated discs as a result of the subject accident; (3) dispute plaintiff's contention that he was disabled for more than 90 days after the first accident; and (4) contend that plaintiff fails to adequately explain a gap in treatment of over seven years. Finally, defendants note that plaintiff has offered no opposition to the defendants' demand for summary judgment in favor of the individual defendants Goldin and Rivin, or to defendants' demand for a default judgment against, and indemnification from, the Cantin Firm and Bruce S. Cantin, individually.

DISCUSSION

The burden on a motion for summary judgment rests initially upon the moving party to come forward with sufficient proof in admissible form to enable a court to determine that it is entitled to judgment as a matter of law. If this burden cannot be met, the court must deny the relief sought (CPLR 3212; Zuckerman v City of New York, 49 NY2d 557 [1980]). However, once a moving party has made a prima facie showing of its entitlement to summary judgment, "the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Garnham & Han Real Estate Brokers v Oppenheimer, 148 AD2d 493 [1989]; see [*9]also Zuckerman, 49 NY2d at 562). Mere conclusory statements, expressions of hope, or unsubstantiated allegations are insufficient to defeat the motion (Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966 [1988]).

As stated by the Appellate Division, First Department in Nazario v. Fortunato & Fortunato, PLLC (32 AD3d 692, 695 [2006]), " [a] plaintiff's burden of proof in a legal malpractice action is a heavy one. The plaintiff must prove first the hypothetical outcome of the underlying litigation and, then, the attorney's liability for malpractice in connection with that litigation' (Lindenman v Kreitzer, 7 AD3d 30, 34 [2004]). In effect, a plaintiff in such an action must prove a case within a case. Only after the plaintiff establishes that he would have recovered a favorable judgment in the underlying action can he proceed with proof that the attorney engaged to represent him in the underlying action was negligent in handling that action and that the attorney's negligence was the proximate cause of the plaintiff's loss since it prevented him from being properly compensated for his loss'" (id.; see also Simmons v Edelstein, 32 AD3d 464 [2006]; Brodeur v Hayes, 18 AD3d 979, 980 [2005] ["(t)o establish proximate cause . . . the client must . . . show that he or she would have been successful in the underlying action"]). With specific regard to the facts set forth in the instant matter, the failure of a plaintiff in a legal malpractice lawsuit to make a showing of serious injury upon which recovery in the underlying personal injury lawsuit was conditioned has, as a matter of law, failed to establish that but for the alleged malpractice, the action would have had a favorable outcome (see Billis v Dinkes & Schwitzer, 30 AD3d 260 [2006]). Accordingly, the court must initially evaluate, in such context, the parties' admissible evidentiary submissions in order to determine whether plaintiff would have defeated defendants' summary judgment motion which sought dismissal for failure to demonstrate that he sustained a serious injury within the meaning of Insurance Law § 5102 (d).^[FN8]

In making a motion for summary judgment on serious injury threshold grounds, a defendant has the initial burden of demonstrating that plaintiff did not sustain a "serious injury" as that term is defined by Insurance Law § 5102 (see Gaddy v Eyler, 79 NY2d 955 [1992]; Omar v Goodman, 295 AD2d 413 [2002]). In support of the underlying summary judgment motion, Adir and Lipskier relied solely on the affirmation of Jeffrey Kaplan, M.D. [*10]dated August 21, 2001.^[FN9] Dr. Kaplan stated that he performed an independent medical examination of Julien on May 23, 2001 because of injuries he allegedly sustained to his neck, back, right shoulder and right knee as a result of the March 31, 1998 accident. After reviewing the diagnosis as set forth in a report which documented Julien's initial medical consultation of April 2, 1998, Dr. Kaplan referred to electrodiagnostic studies that were done on April 24, 1998, which indicated injury to the median nerve at the right wrist, left C6 radiculopathy, and L4-5 lumbar radiculopathy. He further referred to an MRI report of the lumbosacral spine examination done on April 10, 1998, indicating a bulging disc at L4-5 that purportedly abuts and deforms the interior margin of the thecal sac, and an MRI report of the right knee dated April 14, 1998, which reported a partial thickness horizontal linear tear, posterior horn medial meniscus, mild osteoarthritic changes, pre-patellar and super-patella effusions with mild arthioarthritic changes of the medial joint compartment. However, Dr. Kaplan further stated that the operative report of Dr. Milton Smith, with regard to the right knee arthroscopy performed on September 10, 1998, found no tear of the medial meniscus, and that the condition described which required debridement at the time of surgery was not described as post-traumatic in nature.

Dr. Kaplan further stated that Julien advised him that he was taking no medication for pain, that he had last seen a physician with regard to his knee, shoulder or back more than 1½ years before, and that although he underwent physical therapy after the knee surgery, he had not had any in over one year.

In conducting his examination, Dr. Kaplan reported that Julien walked with a normal gait, and that upon palpation, there was no complaint of tenderness at the cervical, toracic or lumbar paraspinous musculature. Similarly, he reported that there was no muscular spasm or trigger point formation in any level at the cervical, thoracic or lumbar area, and no tenderness nor muscle spasm in the right or left shoulder girdle.

Cervical motion was reported to be full and Julien was able to touch his chin to his chest, as well as to each shoulder without complaints of pain. Lumbar flexion and bending and extension were within normal limits, and straight-leg raising was negative to 90 degrees in the sitting and supine position. He had no instability and a full range of motion in both legs.Dr. Kaplan opined, within a reasonable degree of medical certainty, that Julien was "status post motor vehicle accident with complaints of left shoulder, left knee and low back pain, and that he had right knee arthroscopy which was not likely causally related to the accident of March 31, 1998." He further reported that at the time of his examination, there were no objective orthopedic findings that indicated residual injury present from the accident of March 31, 1998; that on physical examination, there were no findings or complaints consistent with internal derangement of the shoulder, and no finding or complaint consistent with the residual findings at the right knee. He concluded his report by stating that at the time of his examination, Julien demonstrated no evidence of clinical neurological pattern. [*11]

It is well settled that in order for a defendant to prevail on a motion for summary judgment grounded upon plaintiff's failure to demonstrate that he or she sustained a serious injury under Insurance Law § 5102 (d), it is incumbent upon a defendant's examining physician to set forth the objective tests that were performed to support the assertions of normality (see Meiheng Qu v Doshna, 12 AD3d 578 [2004]; Rodriguez v J & K Taxi, Inc., 12 AD3d 434 [2004]; Black v Robinson, 305 AD2d 438, 439 [2003]). Where, as here, the defendant's examining physician failed to set forth the objective tests used to determine that the plaintiff did not have any range of motion restrictions, a moving defendant has failed to meet his initial burden (see Nembhard v Delatorre, 16 AD3d 390, 391 [2005]; Black, 305 AD2d at 438; Gamberg v Romeo, 289 AD2d 525 [2001]; Junco v. Ranzi, 288 AD2d 440 [2001]), and it is clear that if opposed, denial of the motion would have been required. Thus, since the defendants failed to establish their initial burden on the underlying summary judgment motion, it would have been, and remains, unnecessary to consider whether the plaintiff's papers were sufficient to raise a triable issue of fact (see Tolstocheev v Bajrovic, 28 AD3d 473 [2006]; Facci v Kaminsky, 18 AD3d 806, 807 [2005]; Rich-Wing v Baboolal, 18 AD3d 726, 727 [2005]).

Furthermore, plaintiff, in opposition to defendants' motion, has shown, through his evidentiary submissions, his ability to demonstrate prima facie at trial that he sustained the alleged serious injuries. The first such document is the affirmed report of an independent orthopedic examination conducted by Dr..Robert J. Orlandi on August 19, 1998, which apparently was not provided by Adir and Lipskier in support of their underlying summary judgment motion. Dr. Orlandi stated that he reviewed various records with which he had been provided, including: (1) a report of Milton Smith, M.D., dated April 28, 1998, which described an MRI scan of Julien's right knee conducted on 4/14/98 as showing a partial horizontal tear in the posterior horn of the medial meniscus, as well as degenerative change and an effusion; (2) an MRI scan showing a central herniated disc at C4-C5, a left lateral herniated disc at C5-C6 and a left lateral herniation at C6-C7, involvement of the nerve root at the C7 foramen and osteoarthritic changes; and (3) an MRI scan of the lumbar spine showing a bulging disc at L4-L5. He further reported that examination of Julien's cervical and lumbar spines revealed a normal curve at 40 degrees of lordisis, as well as a full range of motion, and that forward flexion was notably absent at 90 degrees of forward flexion. Upper and lower extremity reflexes were found to be intact, as were sensation and motor function.

Dr. Orlandi further reported that examination of the right knee revealed normal alignment, discomfort with valgus stress and 2+ posteomedial joint line tenderness. He found no effusion. However, although he opined, as diagnosis, "left trapezial sprain resolved, lumber sprain resolved and tear of the medial meniscus, right knee," and further opined that the prognosis in all areas is good, Dr. Orlandi stated that "the injuries are causally related to the accident of 3/31/98" and that "arthroscopy of the right knee is indicated." [*12]

Plaintiff also provided confirmatory evidence in the form of (1) a report of an internist, Dr. Polina Raiburg, setting forth her findings after conducting an examination of plaintiff on April 2, 1998, and ordering treatment and further diagnostic testing;^[FN10] and (2) a narrative report of Dr. Roger Perard, orthopedist, who conducted an initial examination on April 2, 1998 and several follow-up examinations through and including June 19, 1998, and who determined that Julien had suffered losses in the ranges of motion in his left shoulder as well as in his cervical and lumbar spines. Dr. Perard incorporated, by reference, the MRI reports, attributed the injuries to the subject accident, opined that the prognosis was guarded, and indicated that both he and Dr. Raiburg advised plaintiff to continue physical therapy.^[FN11]

Finally, plaintiff provides (1) an affirmed report of Dr. Paul Post dated April 30, 2005, and (2) an affirmation of Dr. Post dated November 27, 2006. In the former document, Dr. Post sets forth the various tests, including range of motion, which he performed and opines that plaintiff sustained, as a result of the accident of 3/31/98: (1) multiple traumatic disc herniations, cervical area; (2) internal derangement of the right shoulder with partial tear of the supraspinatus tendon, indicating arthroscopic intervention; (3) traumatic chondromalacia and synovitis of the right knee, which necessitated operative intervention; and traumatic disc bulge at L4-5 with root irritation, right. In the latter, he states that: (1) with regard to plaintiff's shoulder injury, surgery is indicated and continued treatment and/or therapy will not resolve his complaint; (2) with regard to plaintiff's spinal injuries, any ongoing car and treatment, including physical therapy, is of limited short term benefit at best, and the absence of continuing medical care is not significant; and (3) with regard to plaintiff's right knee, plaintiff has already undergone surgery, and that it is his opinion within a reasonable degree of medical certainty, that his complaints and limitations will continue and any further treatment would be palliative in nature.

Although the court agrees with defendants that plaintiff failed to proffer competent medical evidence demonstrating that he was unable to perform substantially all of his daily activities for not less than 90 of the first 180 days subsequent to the accident (see Felix v New York City Tr. Auth., 32 AD3d 527 [2006]; Sainte-Aime v Ho, 274 AD2d 569 [2000]), defendants' assertion, as set forth in their reply, that plaintiff's arguments regarding the serious injury threshold issue are speculative because plaintiff's injuries were not evaluated by the court in the underlying personal injury matter, is disingenuous in view of the undisputed fact that defendants failed to oppose the very summary judgment motion wherein [*13]the threshold issue was first raised. Moreover, in view of plaintiff's ample showing of causation as a result of injuries alleged to have been sustained from the first accident, defendants' argument that Dr. Post's opinions are speculative because they fail to take into account plaintiff's second accident simply goes to the weight the trier of fact may accord to Dr. Post's testimony, in the event he is called as a witness, but, is insufficient to justify an outright rejection of his findings by this court. Finally, based upon Dr. Post's stated opinion regarding the futility of continuing treatment, plaintiff raises a triable issue of fact in opposition to defendants' contentions that a gap in treatment would bar his right to seek recovery for serious injuries at trial (see Wadford v Gruz, 35 AD3d 258 [2006]; cf. Pommells v Perez, 4 NY3d 566 [2005]).

Defendants' reliance on the findings of Dr. Philip Taylor in support of their motion, is unavailing. Dr. Taylor conducted an independent medical examination of plaintiff on August 22, 2005, and concluded, inter alia, that plaintiff did not sustain a structural injury to his right shoulder or right knee, and that plaintiff had fully recovered from any cervical spine injury he might have sustained in either the earlier or later accident. As contrary opinions to those presented by plaintiff's experts, Dr. Taylor's findings raise factual issues in opposition to plaintiff's cross motion. However, they do not demonstrate that plaintiff has failed to establish, prima facie, that he sustained serious injuries as a result of the subject accident.

Defendants' assertions (1) that plaintiff is judicially estopped from contending that he was seriously injured as a result of the first accident because he contended, in support of his (successful) claims following his second accident, that he had recovered from injuries sustained in the first accident, and (2) that he is collaterally estopped from "relitigating" the issue of permissive use of the vehicle because he had the opportunity to fully litigate said issue at the framed issue hearing but declined to do so, are raised for the first time in defendants' reply papers, and therefore are not entitled to consideration (see Scott v Albord, 292 AD2d 367 [2002]). In any event, neither argument has merit. "The doctrine of judicial estoppel precludes a party from framing his [or her] pleadings in a manner inconsistent with a position taken in a prior judicial proceeding ... the doctrine will be applied only where a party to an action has secured a judgment in his or her favor by adopting a certain position and then has sought to assume a contrary position in another action simply because his [or her] interests have changed' " (Bono v Cucinella, 298 AD2d 483, 484 [2002], quoting Kimco of NY v Devon, 163 AD2d 573, 574 [1990]). Defendants have failed to show that Julien obtained a "favorable judgment" as a result of having taken a contrary position from that previously taken (see One Beacon Co. v Espinoza, 2007 NY Slip Op 01304 [2d Dept 2007]).As to the second of these contentions, although the doctrine of collateral estoppel precludes a party from litigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party (see Ross v Medical Liability Mutual Ins. Co., 75 NY2d 825, 826 [1990]; Color by Pergament, Inc. v O'Henry's Film Works, Inc., 278 AD2d 92 [2000]; see also Malloy v Trombley, 50 NY2d 46, 52 [1980]), it [*14]is well settled that the doctrine only applies if the identical issue was material to the prior litigation, essential to the decision rendered, and if the party against whom the issue was decided had a full and fair opportunity to litigate the issue in the earlier action (see Ross, 75 NY2d at 826). Defendants' arguments concerning Julien's failure to fully litigate the issue of permissive use at the framed issue hearing are fraught with factual issues, and indeed, their statement that "the pursuit of plaintiff's uninsured motorist claims claim was [defendants'] considered strategy," goes to the very essence of plaintiff's lawsuit and undermines their assertion that such failure was the fault of incoming counsel. Accordingly, defendants fail to demonstrate the applicability of the doctrine of collateral estoppel in the present context.

Indeed, plaintiff has demonstrated that the failure to depose Kaminezki might have proximately caused him to suffer injuries as a result of defendant law firm's malpractice. Although, under Vehicle and Traffic Law § 388, there is a presumption that the operator of a vehicle operates it with the owner's permission, in cases where "both the owner and the driver disclaim[ ] consent, and the plaintiff produced no competent evidence from which consent could be inferred . . . disavowals by both the owner and the driver, without more, should not automatically result in summary judgment for the owner. Where the disavowals are arguably suspect, as where there is evidence suggesting implausibility, collusion or implied permission, the issue of consent should go to a jury" (Country Wide Ins. Co. v National R.R. Passenger Corp., 6 NY3d 172 [2006]; see also Murphy v Carnesi, 30 AD3d 570 [2006]).

However, although plaintiff's evidentiary submissions might lead a fact-finder to conclude on this record that defendant law firm, in representing plaintiff, failed to exercise the "ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession" (McCoy v Feinman, 99 NY2d 295, 301 [2002]; see also Rosato v Zuchlewski, 22 AD3d 381 [2005]), they fail, as a matter of law, to overcome J&R's showing that the contrary is, in fact, the case. Accordingly, under the circumstances at bar, the court finds that neither plaintiff nor defendant law firm is entitled to judgment as a matter of law. Defendants' opposition to the claim that their actions constituted legal malpractice, as well as their challenge to the viability of plaintiff's underlying lawsuit, raise factual issues that preclude the granting of summary judgment. Similarly, plaintiff raises factual issues in opposition to defendants' motion as to whether the cumulative effect of defendants' failure to (1) fully explore the issue of permissive use by subpoenaing and deposing Kaminezki, and (2) oppose the Adir/Lipskier motion, limited plaintiff to arbitrating his otherwise viable cause of action, permitted an otherwise financially responsible defendant to escape liability, and effectively capped plaintiff's potential recovery to an amount falling far short of what he might have recovered at trial. The court therefore denies both defendants' motion insofar as it seeks summary judgment dismissing plaintiff's cause of action for legal malpractice, as well as plaintiff's cross motion for summary judgment on said cause of action.

Breach of contract [*15]

That branch of defendants' motion seeking summary judgment dismissing plaintiff's cause of action for breach of contract is granted. A cause of action for breach of contract against an attorney will be "dismissed since the cause of action, as pleaded, does not rest upon a promise of a particular or assured result and only claims a breach of general professional standards which is viewed as a redundant pleading of a malpractice claim" (Senise v Mackasek, 227 AD2d 184, 185 [1996] [internal quotation marks and citations omitted]).

Finally, the court grants, as unopposed, that branch of defendants' motion for summary judgment dismissing the complaint against Goldin and Rivin, individually, as well as for a default judgment on defendants' third-party action against Bruce S. Cantin, P.C. and Bruce S. Cantin, individually.

The forgoing constitutes the decision and order of the court.

E N T E R,

J. S. C.