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Taylor v. Pulvers11/6/2003
This opinion is uncorrected and subject to revision before publication in the Official Reports.
(*1)
Order, Supreme Court, New York County (Marilyn Shafer, J.), entered on or about August 5, 2002, which, inter alia, granted defendant's motion to dismiss the complaint, unanimously affirmed, with costs.
The affidavits submitted on the motion to dismiss the complaint pursuant to CPLR 3211 were properly considered inasmuch as they conclusively established that plaintiff had no cause of action (see Rovello v Orofino Realty Co., 40 NY2d 633, 636; Fields v Leeponis, 95 AD2d 822) for legal malpractice for defendant law firm's failure to seek a default judgment against a non-answering defendant in the underlying medical malpractice action. The affidavits establish that defendant approached two doctors familiar with plaintiff's condition but that neither was willing to testify that plaintiff had been a victim of medical malpractice, and that defendant was consequently unable to file a certificate of merit in good faith. It is also clear that plaintiff has no cause of action against defendant for not more expeditiously deposing the medical malpractice defendants since plaintiff's allegations afford no non-speculative basis to infer that she sustained damages attributable to the complained-of delay.
(*2) We have considered plaintiff's remaining arguments and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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