In Lang v DiPaolo, 222 AD3d 856 [2d Dept 2023], the court not only upheld the dismissal of the client’s malpractice case but also granted the lawyer’s counterclaim for fees, holding:
A plaintiff seeking to recover damages for legal malpractice must prove that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages (see McCoy v. Feinman, 99 N.Y.2d 295, 301–302, 755 N.Y.S.2d 693, 785 N.E.2d 714). “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” (Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385; see Valley Ventures, LLC v. Joseph J. Haspel, PLLC, 102 A.D.3d 955, 956, 958 N.Y.S.2d 604). A defendant moving for 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 (see EDJ Realty, Inc. v. Siegel, 202 A.D.3d 1059, 1060, 159 N.Y.S.3d 868). Once a defendant makes this prima facie showing, the burden shifts to the plaintiff to raise a triable issue of fact (see id. at 1061, 159 N.Y.S.3d 868; Valley Ventures, LLC v. Joseph J. Haspel, PLLC, 102 A.D.3d at 956, 958 N.Y.S.2d 604).
Here, former counsel established their prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that their actions did not proximately cause the plaintiff’s alleged damages, and that subsequent counsel had a sufficient opportunity to protect the plaintiff’s rights (see Parklex Assoc. v. Flemming Zulack Williamson Zauderer, LLP, 118 A.D.3d 968, 970, 989 N.Y.S.2d 60; Katz v. Herzfeld & Rubin, P.C., 48 A.D.3d 640, 641, 853 N.Y.S.2d 104). In opposition, the plaintiff failed to raise a triable issue of fact as the plaintiff failed to address the issue of proximate cause (see Givens v. De Moya, 193 A.D.3d 691, 693, 146 N.Y.S.3d 291).
The Supreme Court also should have granted the branch of motion by former counsel which was for summary judgment on their counterclaim to recover on an account stated in the total sum of $1,610. “An account stated is an agreement between parties, based upon their prior transactions, with respect to the correctness of the account items and the specific balance due” (Citibank [South Dakota], N.A. v. Abraham, 138 A.D.3d 1053, 1056, 31 N.Y.S.3d 517; see Michael B. Shulman & Assoc., P.C. v. Canzona, 201 A.D.3d 716, 717, 161 N.Y.S.3d 291). Here, former counsel demonstrated their prima facie establishment to judgment as a matter of law on their counterclaim to recover legal fees on an account stated in the total sum of $1,610 (see Givens v. De Moya, 193 A.D.3d at 693–694, 146 N.Y.S.3d 291; Joseph W. Ryan, Jr., P.C. v. Faibish, 136 A.D.3d 984, 985, 27 N.Y.S.3d 159). In opposition, the plaintiff failed to raise a triable issue of fact.
Richard A. Klass, Esq.
Your Court Street Lawyer
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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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