NY: Motions for Summary Judgment by Defense Creates a Question of Fact

Posted on October 6, 2010 by Ben Wasserman

Phillips v. Moran & Kufta, P.C., 53 A.D.3d 1044, 862 N.Y.S.2d 875 (2008)

NY: Underlying personal injury claim against municipality

Student Contributor: Michael Park

Facts: The plaintiff retained attorney in an underlying personal injury claim which occurred on municipal property. Attorney failed to commence an action against the municipality and also failed to make an application for leave to serve a late notice of claim against the municipality. Attorney made a motion for summary judgment and the trial court denied it. The attorney then appealed.

Issue: Was the motion for summary judgment properly denied?

Ruling: Yes. In affirming the decision by the Supreme Court, Monroe County, the Supreme Court, Appellate Division, Fourth Department held for the plaintiff for the following reasons:
1) The Court relied on the decision in Ippolito v. McCormack, Damiani, Lowe & Mellon, 265 A.D.2d 303, 696 N.Y.S.2d 203 and ruled that it is the burden of the defendant in bringing the motion for summary judgment to show that the plaintiff is unable to prove at least one of the elements of their legal malpractice claim, of which elements are:
1. the defendant attorney failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community
2. proximate cause
3. damages
4. the plaintiff would have been successful in the underlying action had the attorney exercised due care

2) Defendant failed to meet their burden and actually raised a triable issue of fact on “whether discretionary leave to file a late notice of claim...would have been available”.

Lesson: The defendant in a legal malpractice case needn't disprove every element of the plaintiff's case. Rather, they just need to establish that at least one of the elements cannot be proven by the plaintiff. In creating a triable issue of fact, the defendant actually helped the plaintiff by showing that a trial would be required to see if the plaintiff could have been successful in the underlying action.

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Defenses: The Uncooperative Client

Posted on June 1, 2010 by Krishna Shah

Ryan v. Powers & Santola, LLP, 2010 NY Slip Op 03827 (3rd Dept. May 6, 2010)

 

Underlying Personal Injury Action

 

Facts:  Plaintiff Ryan was struck on the head by highchair while dining at a restaurant.  He then retained Powers & Santola to represent him in a negligence action against the restaurant. 

 

In response to the defendants’ motion to compel production of a verified bill of particulars and responses to outstanding discovery demands, the trial court issued an order in the underlying action providing that the matter would be dismissed if Ryan failed to provide the outstanding discovery.  Although Ryan eventually served discovery responses, a number of responses required more specific answers.  The trial court, thereafter, extended the discovery schedule twice with a conditional order that the action would be dismissed if plaintiff continued to fail to provide responses.  Ryan failed to comply and the matter was in fact dismissed. 

 

Subsequently, Ryan commenced a legal malpractice action against Powers & Santola for “failing to follow court orders…consenting to conditional orders…and failing to move to vacate the dismissal order”.  Ryan moved for partial summary judgment on the issue of liability. 

 

Issue:  Is Ryan’s alleged failure to cooperate with counsel in preparing discovery responses a viable defense to his action for legal malpractice?

 

Ruling:  Yes.  The Court held that:

 

A claim of legal malpractice will be sustained if the plaintiff establishes…that [he] would have succeeded on the merits of the underlying action but for the attorney’s negligence…We agree…that the plaintiff’s conclusory assertions – that ‘but for’ defendants’ alleged negligence, they ‘would have been able to prosecute all causes of action to a successful outcome’ – failed to establish their prima facie entitlement to summary judgment…There are questions of fact as to whether plaintiff failed to cooperate with defendants in providing them with information and documents necessary for motion practice after the underlying action was dismissed.

Lesson: A former client’s failure to cooperate is a question of fact in assessing the liability of the attorney in a malpractice action.  Failure to cooperate, more likely than not, would prevent plaintiff from establishing that “but for” his former counsel’s malpractice, he would have prevailed in the underlying action.   

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