In order to succeed on the motion, the defendant must present evidence, in admissible form, establishing that at least one of the essential elements of the cause of action cannot be satisfied: (1) the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and (2) the attorney's breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages. The causation element requires a showing that, but for the defendant's negligence, the injured party would have prevailed in the underlying action, or would not have incurred any damages. The defendant must affirmatively demonstrate the absence of one of the elements, rather than merely point out gaps in the plaintiff's proof.
Schmidt v. Burner, NY Slip Op 01191 (2d Dep't February 23, 2022)
