For dismissal of action, attorney must definitively lay out the defense to every element of the cause of action.

When an attorney being sued for legal malpractice seeks the dismissal of the action, the attorney must ensure that the motion papers definitively lay out the defense to every element of the client’s cause of action. In Burbige v Siben & Ferber, 152 AD3d 641 [2d Dept 2017], the court denied the motion brought by the law firm, holding:…

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Here, contrary to the Supreme Court’s determination, the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint. The defendants’ submissions in support of their motion for summary judgment did not establish, prima facie, that the plaintiff will be unable to prove at least one element of his legal malpractice claim (see Kempf v. Magida, 116 A.D.3d 736, 736, 982 N.Y.S.2d 916; Barnave v. Davis, 108 A.D.3d 582, 969 N.Y.S.2d 139; Alizio v. Feldman, 82 A.D.3d 804, 918 N.Y.S.2d 218). Furthermore, the defendants failed to establish, prima facie, that the plaintiff did not sustain “actual and ascertainable damages” as a result of the defendants’ alleged neglect of the underlying action (Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d at 442, 835 N.Y.S.2d 534, 867 N.E.2d 385; see Suydam v. O’Neill, 276 A.D.2d at 550, 714 N.Y.S.2d 686).

 

– R. A. Klass
Your Court Street Lawyer

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