Tuesday, May 13, 2014

A defendant's summary judgment motion in a legal malpractice action.

Practice Point:  The Appellate Division affirmed the denial of defendant's motion for summary judgment dismissing the amended complaint insofar as asserted against him. He failed to show, prima facie, that the plaintiff was unable to prove at least one of the essential elements of his legal malpractice cause of action, namely, he did not establish that successor counsel had a sufficient opportunity to protect the plaintiff's rights such that his conduct could not have proximately caused the plaintiff's alleged damages. Failure to make such a showing required denial of the motion, regardless of the sufficiency of the opposing papers.

Student note:  The elements of a cause of action sounding in legal malpractice are 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 that duty proximately caused the plaintiff to sustain actual and ascertainable damages. To succeed on a motion for summary judgment, the defendant in an action to recover damages for legal malpractice must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of the essential elements of the cause of action.

Case:  Anisman v. Nissman, NY Slip Op03218 (2d Dept. 2014).

Here is the decision.

Tomorrow's issue: Fraud claims and the particularity requirement.