In this legal malpractice case, Provenzano v. Pearlman [subscription], recently decided in EDNY, plaintiff was struck in the head by an errant television camera, while on the set of a news TV show.  She went to trial in Supreme Kings and lost.  Now, she sues her attorneys in EDNY. 

Defendants, who represented themselves in the Legal Malpractice case, win summary judgment, but not simply on the reflexive use of the Rosner v. Paley, 65 N.Y.2d 736, 481 N.E.2d 553, 554, 492 N.Y.S.2d 13 (N.Y. 1985)) doctrine.  To review, Rosner stands for the proposition that an  "attorney cannot be held liable for malpractice for reasonable discretion exercised during the course of a litigation."

Often, that is the end of the analysis, and judgment is granted.  The counter-argument is that whether the choice [discretion] was reasonable is a question of fact for the jury to determine, and that in fact the decision was unreasonable, both objectively and subjectively.

Here, Judge Townes combed through the evidence presented by both sides, and determined that plaintiff came up short.  "Even assuming that the law firm was negligent in failing to retain a design expert, Provenzano has not provided evidence sufficient for a rational factfinder to conclude that, but for the alleged negligence, Provenzano would have prevailed in the underlying suit. Dr. Allen does not provide any basis whatsoever for a legitimate inference by the factfinder that the unprompted camera movement was caused by a design defect rather than negligent repairs by ABC,"

"Even assuming that the law firm was negligent in failing to call as witnesses the designers of the camera system, Provenzano has not provided evidence sufficient for a rational factfinder to conclude that, but for the alleged negligence, Provenzano would have prevailed in the underlying suit. Provenzano does not offer any specific testimony that the designers could have provided"

"Even assuming that the law firm was negligent in failing to develop further evidence of erratic camera movement, Provenzano has not provided evidence sufficient for a rational factfinder to conclude that, but for the alleged negligence, Provenzano would have prevailed in the underlying suit. "