Today, we continue the story of the legal malpractice law suit against the LaRossa law firm. In Landau, P.C. v LaRossa, Mitchell & Ross ;2010 NY Slip Op 50620(U) ;Decided on April 7, 2010 ;Supreme Court, New York County ;Schlesinger, J.

Two interesting issues are discussed.  The first is whether an expert affidavit is needed in all legal malpractice summary judgment cases, and the second is whether a sophisticated client can be held to have negated the malpractice by his participation in the underlying litigation.  Here the answer is twice, no.

"Second, the lack of an expert affirmation in the moving papers is not fatal. The argument put forth by the plaintiff that his former attorneys failed to exercise ordinary reasonable skill and knowledge commonly possessed by members of the legal profession practicing this kind of law, is not a particularly esoteric or technical one. While an expert affirmation can serve a useful purpose in channeling the Court’s focus as to the relevant issues, an experienced Court can usually detect whether or not there has been competent presentation of arguments to defeat a summary judgment motion. Also, Kenneth Mauro’s affirmation, served not only to oppose the motion by the plaintiff but to support the defendants’ cross-motion as well. In the latter case, the plaintiff appropriately responded with an expert affirmation of its own, one by Brian Shoot, an expert also in civil appellate advocacy.

But most important, this controversy will not now be decided by this Court on technical arguments. While such serve their purpose, and this Court is not in any way criticizing the multiple decisions made during the long pendency of this case by itself and others, again the overriding principle gleamed by this Court from the Court of Appeals is that Eisen, P.C. has yet to have its day in court on the merits of its legal malpractice claim.The second argument proferred by the defense is an exhaustive discussion of the Aboud and Rehberger actions concluding that, despite the arguments made by it in its reargument motion that, in fact there were no viable claims apart from the fraud and no viable case to be made for constructive notice of the alleged negligent conditions in either action. In other words, the same law firm is now agreeing with the City’s position in the first instance, one they forcefully repudiated in their reargument motion. [*5]

This brings the Court to another argument put forth by the defense, that the original papers opposing the City’s motion were discussed with Mr. Eisen who approved of them before they were submitted. This is presented in affirmations from a member of the firm, John W. Mitchell and from an associate, Susan LaRossa. They claim that it was Mr. Eisen who essentially directed the opposition.

Mr. Eisen in his Reply adamantly denies these assertions. Frankly, I believe these assertions not only diminish the overall arguments proferred by the defense, but are also irrelevant. At the time of the summary judgment motion, Mr. Eisen was not only not co-counsel to the firm he retained, but he was a disbarred lawyer as well. Therefore, to suggest that he not only aided the defense decisions but directed them is not only inappropriate (if it occurred) but more important, does not relieve the law firm from proffering the best arguments it could come up with to defeat the motion. Arguably one of those was that the central premise of the City’s argument was wrong. "