From time to time we muse over whether legal malpractice cases are unfairly treated or exposed to a higher degree of scrutiny.  We wonder whether the fact that the rules for legal malpractice are structured by attorneys, are applied by attorneys and deal only with attorneys creates an institutional bias.

Barnave v Davis   2013 NY Slip Op 05184   Decided on July 10, 2013   Appellate Division, Second Department  requires one to ask how Supreme Court could have dismissed this case.  Was it because plaintiff was pro-se?
 

"Here, contrary to the Supreme Court’s determination, the defendant failed to establish his prima facie entitlement to judgment as a matter of law dismissing the complaint. As a result of the plaintiff’s counsel’s failure to appear at a scheduled compliance conference in the underlying action, the underlying action was ultimately dismissed. Contrary to the defendant’s contention, the evidence he submitted in the present action in support of his motion for summary judgment dismissing the complaint did not establish, prima facie, that he no longer represented the plaintiff at the time of that default. The defendant acknowledged in an affidavit submitted in support of his motion that, after the default, he assisted the plaintiff in his efforts to have the underlying action [*2]restored to the calendar, stating, inter alia, that he "use[d] law office failure as the reason [he] did not appear" on behalf of the plaintiff in the underlying action. Therefore, the defendant failed to establish, prima facie, that the plaintiff could not prove breach of duty based on the alleged failure to appear. Furthermore, contrary to his contention, the defendant failed to establish, prima facie, that the plaintiff’s conduct negated any negligence by the defendant and constituted the sole proximate cause of the dismissal of the underlying action. Accordingly, the defendant’s submissions in support of his motion for summary judgment did not establish, prima facie, that the plaintiff will be unable to prove at least one element of his legal malpractice claim and, thus, the defendant failed to demonstrate his entitlement to judgment as a matter of law (see Affordable Community, Inc. v Simon, 95 AD3d at 1048; Mueller v Fruchter, 71 AD3d 650, 651; Rosenstrauss v Jacobs & Jacobs, 56 AD3d 453, 454). In light of our determination, we need not address the sufficiency of the plaintiff’s opposition papers (see Affordable Community, Inc. v Simon, 95 AD3d at 1048; see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

Accordingly, the Supreme Court should have denied the defendant’s motion for summary judgment dismissing the complaint. "