Opinion
November 30, 1967
Order entered February 2, 1967, unanimously modified, on the law, to include therein, pursuant to CPLR 3212 (subd. [g]) a finding that defendants Logan were guilty of malpractice, and as so modified affirmed, with $50 costs and disbursements to appellant against respondents Logan. Defendants Logan and Logan have failed to set forth any facts excusing their failure to prosecute the action entrusted to them by plaintiff. Plaintiff is therefore as against these defendants entitled to a finding in the nature of partial judgment determining this phase of the case. Plaintiff is disturbed by the statement in Special Term's memorandum that plaintiff in order to recover must show that she would have recovered in the negligence action that underlies the present action, and claims that the requirement is that she show that she probably would have recovered. The difference is largely semantic. Obviously it is impossible to show conclusively that had that action gone to trial it would have resulted in a verdict favorable to plaintiff. What plaintiff must do is to prove such facts in regard to the accident as enables a jury to find that she would have recovered. Whether this is called "that she would recover" or that "she probably would recover" is merely a matter of phrasing.
Concur — Botein, P.J., Stevens, Steuer, McNally and McGivern, JJ.