Practice point: A plaintiff
must establish 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 this duty
proximately caused the plaintiff actual and ascertainable damages.
For summary judgment, a defendant must demonstrate that
the plaintiff is unable to prove at least one of the essential elements
of the cause of action.
Here, the alleged malpractice relates to the sufficiency of the order
to show cause and supporting papers prepared by the defendants
and submitted on behalf of the plaintiffs in the personal injury
action, pursuant to which they moved to vacate their default in the
personal injury action. A motion to vacate a default by a plaintiff in
appearing for trial requires the demonstration of a reasonable excuse
and an affidavit setting forth the merits of the cause of action, pursuant to CPLR 5015.
The defendants established, prima facie, that the plaintiffs
had no reasonable excuse for their default in appearing for jury
selection in the personal injury action, thereby establishing that the
alleged inadequecy of the motion papers that they prepared on the
plaintiffs' behalf was not the proximate cause of the plaintiffs'
damages. In opposition, the plaintiffs failed to raise a triable issue of fact
as to whether they had a reasonable excuse for their default that could
have been communicated to the defendants for inclusion in the
papers submitted with the motion to vacate.
Student note: An attorney's conduct and performance in connection with a motion to vacate a default may constitute legal malpractice.
Case: DiGiacomo v. Langella, NY Slip Op 05150 (2d Dept. 20145)
Here is the decision.
Tomorrow's issue: A subpoena to obtain discovery from a non-party.
