In McGlynn v Burns & Harris, 223 AD3d 733 [2d Dept 2024], the court modified the lower court’s ruling on summary judgment, holding:
A plaintiff seeking to recover damages for legal malpractice must establish that “(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” (Aqua–Trol Corp. v. Wilentz, Goldman & Spitzer, P.A., 197 A.D.3d 544, 545, 152 N.Y.S.3d 504; see McCoy v. Feinman, 99 N.Y.2d 295, 301–302, 755 N.Y.S.2d 693, 785 N.E.2d 714; Gardner v. Sacco & Fillas, LLP, 216 A.D.3d 1139, 1140, 189 N.Y.S.3d 725). “A defendant seeking summary judgment dismissing a legal malpractice cause of action has the burden of establishing prima facie that he or she did not fail to exercise such skill and knowledge, or that the claimed departure did not proximately cause the plaintiff to sustain damages” (Bakcheva v. Law Offs. of Stein & Assoc., 169 A.D.3d 624, 625, 93 N.Y.S.3d 388).
Contrary to the Supreme Court’s determination, the law firm defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint insofar as asserted against them. The law firm defendants’ submissions in support of their motion did not establish, prima facie, the absence of at least one element of the legal malpractice cause of action (see Burbige v. Siben & Ferber, 152 A.D.3d 641, 642, 58 N.Y.S.3d 562). “Under the doctrine of judicial estoppel, also known as estoppel against inconsistent positions, a party may not take a position in a legal proceeding that is contrary to a position he or she took in a prior proceeding, simply because his or her interests have changed” (Bihn v. Connelly, 162 A.D.3d 626, 627, 78 N.Y.S.3d 243; see Archer v. Beach Car Serv., Inc., 180 A.D.3d 857, 861, 120 N.Y.S.3d 98). Here, the plaintiff’s allegation that he was injured due to a defect in the loading dock was not necessarily contrary to the position taken in his workers’ compensation claim that he suffered injuries while moving heavy boxes on the loading dock. There can be more than one proximate cause of a plaintiff’s injuries (see Scurry v. New York City Hous. Auth., 39 N.Y.3d 443, 454, 190 N.Y.S.3d 677, 211 N.E.3d 1130; Turturro v. City of New York, 28 N.Y.3d 469, 483, 45 N.Y.S.3d 874, 68 N.E.3d 693; Moe–Salley v. Highbridge House Ogden, LLC, 214 A.D.3d 722, 722, 185 N.Y.S.3d 230; Reyes v. S. Nicolia & Sons Realty Corp., 212 A.D.3d 851, 852, 183 N.Y.S.3d 471). Accordingly, the court should have denied the law firm defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them.
Richard A. Klass, Esq.
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Richard A. Klass, Esq., maintains a law firm engaged in civil litigation at 16 Court Street, 28th Floor, Brooklyn, New York. He may be reached at (718) COURT●ST or RichKlass@courtstreetlaw.comcreate new email with any questions.
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