…the client must prove that he sustained damages….

Once the defendant-law firm has moved for summary judgment to dismiss the complaint, the client must prove that he sustained damages. See, Nill v Schneider, 173 AD3d 753 [2d Dept 2019]:

A plaintiff in an action alleging legal malpractice must prove that the defendant attorney’s failure to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession proximately caused the plaintiff to sustain actual and ascertainable damages (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385; Sang Seok NA v. Schietroma, 163 A.D.3d 597, 598, 79 N.Y.S.3d 636). “ An attorney’s conduct or inaction is the proximate cause of a plaintiff’s damages if but for the attorney’s negligence, the plaintiff would have succeeded on the merits of the underlying action, or would not have sustained actual and ascertainable damages ” (Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 26 N.Y.3d 40, 50, 19 N.Y.S.3d 488, 41 N.E.3d 353 [citation and internal quotation marks omitted]; see Richmond Holdings, LLC v. David S. Frankel, P.C., 150 A.D.3d 1168, 1168, 52 N.Y.S.3d 672).

“ It is a defendant’s burden, when it is the party moving for summary judgment, to demonstrate affirmatively the merits of a defense, which cannot be sustained by pointing out gaps in the plaintiff’s proof ” (Quantum Corporate Funding, Ltd. v. Ellis, 126 A.D.3d 866, 871, 6 N.Y.S.3d 255). Once a defendant makes a prima facie showing, the burden shifts to the plaintiff to raise a triable issue of fact (see Iannucci v. Kucker & Bruh, LLP, 161 A.D.3d 959, 960, 77 N.Y.S.3d 118; Valley Ventures, LLC v. Joseph J. Haspel, PLLC, 102 A.D.3d 955, 956, 958 N.Y.S.2d 604).

Here, the defendant met her prima facie burden of demonstrating that the plaintiff did not sustain actual and ascertainable damages proximately caused by the defendant’s alleged negligent representation (see Harris v. Barbera, 163 A.D.3d 534, 536, 79 N.Y.S.3d 643; Panos v. Eisen, 160 A.D.3d 759, 760, 75 N.Y.S.3d 69; Kaloakas Mgt. Corp. v. Lawrence & Walsh, P.C., 157 A.D.3d at 779, 66 N.Y.S.3d 897). The evidentiary submissions established that the proximate cause of the plaintiff’s damages was the occurrence of a tree falling on the subject property during Hurricane Sandy, and not any claimed failure on the part of the defendant to discover, prior to the closing, any alleged discrepancy between the certificate of existing use and the 2007 survey of the subject property (see Excelsior Capitol LLC v. K & L Gates LLP, 138 A.D.3d 492, 492, 29 N.Y.S.3d 320; cf. Esposito v. Noto, 132 A.D.3d 944, 946, 19 N.Y.S.3d 300). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, we agree with the Supreme Court’s determination granting the defendant’s cross motion for summary judgment dismissing the amended complaint insofar as asserted against her. For these same reasons, we agree with the court’s determination denying the plaintiff’s motion, inter alia, for summary judgment on the issue of liability.

R. A. Klass
Your Court Street Lawyer

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