Tuesday, September 29, 2015

A legal malpractice claim.

Practice point:  The Appellate Division affirmed the granting of summary judgment to the attorney-defendants in this action where the plaintiffs alleged that the attorney-defendants represented them in a real estate venture in which the plaintiff loaned the individual defendant $600,000, and that the plaintiffs sustained damages when the the individual defendant failed to repay the loan. In support of their motion for summary judgment dismissing the complaint, the attorney-defendants established, prima facie, that even if they failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, any such failure was not a proximate cause of the plaintiffs' alleged damages when the individual defendant did not repay the loan.

Student note:  In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages. To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer's negligence. To prevail on a summary judgment motion, the defendant must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements.

Case:  Antonelli v. Guastamacchia, NY Slip Op 06870 (2d Dept. 2015)

Here is the decision.

Tomorrow's issue:  A school's common law duty to supervise.