Legal Malpractice

A Fairly Rare Case On Appeal in Legal Malpractice

By (Andrew Lavoott Bluestone)

It's fairly rare for defendant-attorney to move for summary judgment in a legal malpractice case, lose, and then lose at appeal.  Why do defendants move for summary judgment ?  Beyond the obvious answer that it is a shot that they can take without any downside, the general reason is that defendant believes that it can win in one of two areas. 

The first area is generally some lack of privity, or some lack of authority in the representation.  For example, that plaintiff did not cooperate in giving an affidavit, or plaintiff did not pay expenses for an expert, or lacked standing because of bankruptcy,

The second area is plaintiff's  generalized inability to prove success on the underlying case.  As examples, that there was no collectible assets, or the statute had already passed when the client came to the attorney, or the such.

While we cannot tell why defendant took his appeal in Mueller v Fruchter ;2010 NY Slip Op 01771 ;Appellate Division, Second Department ; Decided on March 2, 2010  we do see that neither Supreme Court nor the Appellate Division thought much of the motion:

"Here, the Supreme Court properly denied that branch of the defendants' motion which was for summary judgment dismissing the plaintiff's first cause of action (see Rosenstrauss v Jacobs & Jacobs, 56 AD3d 453, 454; Velie v Ellis Law, P.C., 48 AD3d 674, 675; Pedro v Walker, 46 AD3d 789, 790). The defendants failed to make a prima facie showing of their entitlement to judgment as a matter of law since they failed to show that the plaintiff was unable to prove at least one of the essential elements of her legal malpractice cause of action (see Rosenstrauss v Jacobs & Jacobs, 56 AD3d at 454; Velie v Ellis Law, P.C., 48 AD3d at 675; Pedro v Walker, 46 AD3d at 790). Thus, we need not address the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).


 

Full post as published by New York Attorney Malpractice Blog on March 08, 2010 (boomark / email).