Legal Malpractice — Shifting of Burden by Defendant’s Introduction of Expert Evidence of Competence

From Orchard Motorcycle Dist., Inc. v. Morrison Cohen Singer & Weinstein LLP, 2008 NY Slip Op 1996, 2008 N.Y. App. Div. LEXIS 1864 (1st Dep’t March 6, 2008):

The expert's affidavit was enough to sustain defendant's prima facie burden on the motion for summary dismissal of the legal malpractice claim, shifting the burden to plaintiffs (see Tanel v Kreitzer & Vogelman, 293 AD2d 420, 421-422 [2002]). In opposition, plaintiffs failed to submit their own expert affidavit delineating the appropriate standard of professional care and skill to which defendant was required to adhere under the circumstances, which involved matters arising out of foreclosure actions, complex loan arrangements and bankruptcy proceedings that ordinary jurors could not evaluate based on their own knowledge and experience. There was no prima facie case for legal malpractice (Merlin Biomed Asset Mgt., LLC v Wolf Block Schorr & Solis-Cohen LLP, 23 AD3d 243 [2005]; Schadoff v Russ, 278 AD2d 222 [2000]). The record further demonstrates that the corporate plaintiffs' dire financial situation was brought on by factors independent of defendant's professional representation, rendering the claim that defendant proximately caused plaintiffs' business failure speculative (Brooks v Lewin, 21 AD3d 731 [2005], lv denied 6 NY3d 713 [2006]).

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