Opinion
No. 16116 Index No. 154928/17 Case No. 2021-02391
06-09-2022
Lisa Vioni, Plaintiff-Respondent, v. Carey & Associates LLC et al., Defendants-Appellants.
Carey & Associates LLC, New York (Michael Q. Carey of counsel), for appellants. The Dweck Law Firm, LLP, New York (H.P. Sean Dweck of counsel), for respondent.
Carey & Associates LLC, New York (Michael Q. Carey of counsel), for appellants.
The Dweck Law Firm, LLP, New York (H.P. Sean Dweck of counsel), for respondent.
Before: Kapnick, J.P., Mazzarelli, Gesmer, Shulman, Rodriguez, JJ.
Order, Supreme Court, New York County (Anthony Cannataro, J.), entered on or about June 4, 2021, which, to the extent appealed from, denied defendants' motion for summary judgment dismissing the causes of action for legal malpractice and breach of contract, unanimously affirmed, without costs.
Defendants, admittedly discharged for cause (see Vioni v Carey & Assoc., LLC, 192 A.D.3d 617 [1st Dept 2021]), failed to proffer any evidence that subsequent counsel did not adequately prepare plaintiff's rebuttal expert witness for his deposition during the underlying federal litigation. Accordingly, they did not establish prima facie that, but for the intervening and superseding failures of plaintiff's successor counsel, plaintiff would not have lost at trial (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442 [2007]; Pyne v Block & Assoc., 305 A.D.2d 213, 213 [1st Dept 2003]), Indeed, defendants have not shown on this record that it was not their own alleged acts of malpractice that prevented plaintiff from prevailing in her federal lawsuit, including, inter alia, their failure to timely serve expert reports, obtain a discovery stay, and be truthful when they otherwise advised plaintiff and the court that the missed expert witness deadline was a deliberate, strategic decision.
We have considered defendants' remaining contentions and find them unavailing.