Ponce v Howard Simmons, P.C.; 2012 NY Slip Op 32247(U); August 23, 2012; Supreme Court, New York County; Docket Number: 108692/07; Judge: Martin Shulman is a classic immigration legal malpractice matter.  It seems that there are ever changing INS or ICE or Homeland Security forms and programs and that the able immigration practitioner has to be completely up to date on the forms and the programs.  It is alleged here that the defendant attorney filed the wrong forms, possibly outdated, and that as a result, the clients will have to leave the US.

Immigration legal malpractice cases present a full menu of problems.  How do you prove the client would have been approved?  Where is the client now?  How are they supporting themselves?  Will they be in the US for trial?  Can the defendants simply out wait them?

In this case, defendants did not obtain summary judgment because there was no expert affidavit in support of the motion.  "In a legal malpractice action, “expert testimony is generally required to establish a breach of the standard of professional care, except where the daily experience of the
fact finder provides a sufficient basis for judging the adequacy of the professional service.” Kulak v Nationwide Mut. Ins. Co., 40 NY2d 140, 148 (1976); S & D Petroleum Co., lnc. v Tamsett, 144 AD2d 849 (3d Dept 1988). In the context of a motion for summary judgment, the burden rests upon the moving party, in this case the defendant, “to establish through expert opinion that he did nof perform below the ordinary reasonable skill and care possessed by an average member of the legal community (citations omitted).” Suppiah v Kalish, 76 AD3d 829, 832 (Is* Dept 2010). Defendant is required to “establish through an expert’s affidavit that even if he did commit malpractice, his actions were not the proximate cause of the plaintiff‘s loss (citation omitted).’’ Id.
Defendants do not submit an expert affidavit regarding either whether Simmons’ actions and/or inactions constituted malpractice or whether those actions were or were not the proximate cause of plaintiffs’ loss. “By failing to submit the affidavit of an expert, defendant never shifted the burden to plaintiff.” Id. Instead, defendants’ counsel improperly attempts to satisfy this burden by submitting a reply affirmation averring that he is an immigration law expert and incorporating by reference the arguments made in the Defendant’s Brief in Support of the Motion for Summary Judgment. Vrhovc Reply Aff. at 77 15-20. It is, however, generally improper for counsel to function as both an advocate and an expert witness. See Ellis v Broom County, 103 AD2d 861, 861 (3d Dept 1984)(“An obvious justification for the advocate-witness rule is avoidance of the unseemly circumstance of placing an attorney in a position in which he must argue the credibility of his own testimony”); Emery Cell; Brinckerhoff & Abady, LLP v Rose, 201 2 WL 1656077 *24-25,2012 NY
Misc LEXIS 2136 *29-30, 2012 NY Slip Op 31 198(U) (Sup Ct, NY County 2012); see also Rule 3.7 of the Rules of Professional Conduct (22 NYCRR 1200.0 [previously Rule 1200.21 (DR 5-1 02) of the Code of Professional Responsibility]. In any event, even if defendants had provided an expert affidavit, their motion for summary judgment would still be denied as issues of fact exist.

Defendants argue that dismissal is warranted because: ’I) plaintiffs cannot prove that they would have succeeded in obtaining their adjustment of status “but for” Simmons’ negligence; and 2) plaintiffs have not shown damages."