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Posted: March 27, 2015

Malpractice Defendants Seeking Summary Judgment Must Show that Plaintiff Cannot Prove its Claim

On March 18, 2015, the Second Department issued a decision in Smith v. Kaplan Belsky Ross Bartell, LLP, 2015 NY Slip Op. 02108, reversing a grant of summary judgment to lawyers accused of malpractice.

in Smith, the plaintiffs brought an action for, among other things, legal malpractice against the defendants, alleging that they were damaged by the defendants’ failure to seek a default judgment against the plaintiffs’ adversary in a lawsuit in which the defendants represented the plaintiffs. The trial court granted the defendants summary judgment. The Second Department reversed, explaining:

In order to prevail in an action to recover damages for legal malpractice, a plaintiff must establish that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the 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 attorney’s negligence. The defendants moving for summary judgment dismissing a legal malpractice claim against them have the burden of establishing, through the submission of proof in evidentiary form, that the plaintiff is unable to prove at least one of the essential elements of the cause of action.

. . .

The defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging legal malpractice. While the defendants argue that the plaintiffs could not have recovered on their action against Want & Ender because the plaintiffs were not in privity or near privity with Want & Ender, their submissions failed to eliminate all triable issues of fact with respect to this issue. In support of their motion, the defendants submitted, inter alia, the deposition testimony of the plaintiffs, who testified as to when and how they relied on the improperly prepared financial reports, and explained why they believed that the accountants knew or should have known that the plaintiffs would be relying on the prepared financial reports. Since the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the cause of action alleging legal malpractice, that branch of the defendants’ motion should have been denied, regardless of the sufficiency of the papers submitted in opposition.

(Internal quotations and citations omitted) (emphasis added).

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