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.
