Summary
holding that defendant law firm's expert affidavit was adequate to sustain its prima facie burden on its motion for summary judgment dismissing former client's legal malpractice action
Summary of this case from Posner v. Mallow, Konstam Hager, PCOpinion
No. 2995.
March 6, 2008.
Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered July 18, 2007, which, to the extent appealed from as limited by the briefs, granted defendant's motion for summary judgment dismissing the amended complaint, unanimously affirmed, without costs.
Stephen J. Bury, New York, for appellants.
Lewis Brisbois Bisgaard Smith LLP, New York (Peter T. Shapiro of counsel), for respondent.
Before: Mazzarelli, J.P., Saxe, Gonzalez and Acosta, JJ. [ See 2007 NY Slip Op 32152(U).]
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 plaintiff's ( see Tanel v Kreitzer Vogelman, 293 AD2d 420, 421-422). In opposition, plaintiff's 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; Schadoff v Russ, 278 AD2d 222). 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, lv denied 6 NY3d 713).
These deficiencies were not cured by the affidavit of plaintiffs' principal, which failed to establish that but for defendant's alleged malpractice, the corporate plaintiff's would have successfully reorganized in chapter 11 proceedings ( Phillips-Smith Specialty Retail Group II v Parker Chapin Flattau Klimpl, 265 AD2d 208, lv denied 94 NY2d 759; Zarin v Reid Priest, 184 AD2d 385). Even if this Court were to consider plaintiff's "failure to advise" claim, an attorney's selection of one among several reasonable courses of action does not constitute malpractice ( Rosner v Paley, 65 NY2d 736).
The Bankruptcy Court's orders approving defendant's legal fees and expenses established defendant's entitlement thereto ( Izko Sportswear Co., Inc. v Flaum, 25 AD3d 534; Siegel v Werner Zaroff, 270 AD2d 119). Coupled with defendant's admission to an instance of overcharging plaintiff's for services and agreement to repay same, this warranted summary dismissal of the conversion claim.
Defendant's right to fees and expenses having been established, it cannot be argued that it was unjustifiably enriched. Nor is there any basis in the record to warrant rescission of the retainer agreement between plaintiff's and defendant.
We have considered plaintiffs' other arguments and find them without merit.