Practice point: Defendant-attorney did not meet its burden of presenting evidence in admissible form
establishing that plaintiff is unable to prove at least one of these
essential elements of the claim, namely, 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 plaintiff to sustain actual and ascertainable damages.
Student note: A defendant cannot sustain its burden merely by pointing out gaps in plaintiff's proof.
Case: Bivona v. Danna & Assoc., P.C., NY Slip Op 08948 (2d Dept. 2014)
Here is the decision.
Monday's issue: A court's authority to reach the issue of attorneys' fees, and separate fees for appellate work.
