Good and Bad Affidavits in Legal Malpractice
The decision in this case is straightforward, but gives practitioners little practical advice on how to word and present an expert's affidavit. In Giardina v Lippes, 2010 NY Slip Op 06834;; Appellate Division, Fourth Department we see two things. The first is that the two summary judgment motion rule is not really a rule at all; it is really just guidance to the Court. Two motions for summary judgment might be entertained after all.
The second issue we see is that of the quality of expert opinions in summary judgment. Once, the rule was that courts scrutinize whether movant demonstrates prima facie entitlement to summary judgment, and if so, whether opponent demonstrates material questions of fact that continue to require resolution by the trier of fact.
The quality of an expert's opinion was sacrosanct, since facts may not be debated in a motion for summary judgment. Here, and in many other cases the kicker is when a court feels permitted to rule out the expert's opinion as "conclusory." In this case, as in many other appellate decisions, no time is taken to explain why the particular affidavit was "conclusory" rather than permissible. What makes the difference?
Here, defendant's expert presented a "good" affidavit, and plaintiff's expert presented a "conclusory" affidavit in a lawn care products liability case. How does one tell the difference?