On November 15, 2017, the Second Department issued a decision in Herman v. Franke, Gottsegen, Cox Architects, 2017 NY Slip Op. 07980, granting defendants summary judgment on a professional malpractice claim due to the plaintiff’s failure to submit expert testimony in opposition to the defendants’ motion, explaining:
A claim of professional malpractice requires proof that there was a departure from the accepted standards of practice and that the departure was a proximate cause of the injury. It is incumbent upon the plaintiff to present expert testimony to support allegations of malpractice, except where the alleged act of malpractice falls within the competence of a lay jury to evaluate.
Here, the Supreme Court correctly concluded that the determination of the maximum enlargement of the building permissible under New York law was the type of determination that required specialized knowledge, and thus, that expert evidence testimony was required to determine whether the defendants exercised due care in making that determination. The defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint by submitting, inter alia, the affidavit from Cox, a licensed architect. As the plaintiffs failed to offer an affidavit from an expert, they failed to establish their entitlement to judgment as a matter of law and failed to raise a triable issue of fact to rebut the defendants’ prima facie showing.
(Internal citations omitted).
We both bring and defend professional malpractice claims and other claims relating to the duties of professionals such as lawyers, accountants and architects to their clients. Contact us if you have questions regarding such claims or appeals of such claims.
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