The denial of defendants' motion to dismiss is affirmed. Defendants, who were admittedly discharged for cause, failed to proffer any evidence that subsequent counsel did not adequately prepare plaintiff's rebuttal expert witness for his deposition during the underlying federal litigation. Therefore, they did not establish prima facie that, but for the intervening and superseding failures of plaintiff's successor counsel, plaintiff would not have lost at tria. The Appellate Division notes that defendants have not shown on this record that it was not their own alleged acts of malpractice that prevented plaintiff from prevailing in her federal lawsuit, including their failure to timely serve expert reports, obtain a discovery stay, and be truthful when they otherwise advised plaintiff and the court that the missed expert witness deadline was a deliberate, strategic decision.
Vioni v. Carey & Assoc., LLC, NY Slip Op 03805 (1st Dep't June 9, 2022)
