Gajek v Schwartzapfel, Novick, Truowski & Marcus, P.C. 2014 NY Slip Op 32418(U) September 8, 2014 Supreme Court, Suffolk County Docket Number: 12-2375 Judge: Ralph T. Gazzillo is an example of  what we believe is the most complicated  case to litigate. Last week we discussed the successor counsel problem.  Today, we look to this case for the use of experts in legal malpractice litigation.

"Schwartzapfel and Platt now move for summary judgment dismissing the complaint and all cross
claims against Platt. In support of their motion, the moving parties submit, among other things, the
pleadings, Platt’s affidavit, and copies of the preliminary conference order and two compliance
conference orders issued in this action. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact (see Alvarez v Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 [1985]). The burden then shifts to the party opposing the motion which must produce evidentiary proof in admissible form sufficient to require a trial of the material issues of fact (Roth v Barreto, 289 AD2d 557, 735 NYS2d 197 [2d Dept 2001]; Rebecchi v Whitmore, 172 AD2d 600, 568 NYS2d 423 [2d Dept 1991]; O’Neill v Fishkill, 134 AD2d 487, 521 NYS2d 272 [2d Dept 1987]). Furthermore, the parties’ competing interest must be viewed "in a light most favorable to the party opposing the motion" (Marine Midland Bank, N.A. v Dino & Artie’s Automatic Transmission Co., 168 AD2d 610, 563 NYS2d 449 [2d Dept 1990]). However, mere conclusions and unsubstantiated allegations are insufficient to raise any triable issues of fact (see Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]; Perez v Grace Episcopal Church, 6 AD3d 596, 774 NYS2d 785 [2d Dept 2004]; Rebecchi v Whitmore, supra).

"his branch of the plaintiffs’ motion seeks a determination that they have established the first of
four clements which they must prove to hold Schwartzapfel liable for legal malpractice. As set forth
above, a plaintiff must prove ( 1) that the defendant attorney failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community, (2) proximate cause, (3) damages, and ( 4) that the plaintiff would have been successful in the underlying action had the attorney exercised due care (citations omitted). Generally, the plaintiff in a legal malpractice action must submit expert testimony setting forth the appropriate standard of professional care which the defendant was required to meet under the circumstances (Healy v Finz & Finz, P.C., 82 AD3d 704, 918 NYS2d 500 [2d Dept 2011]; Northrop v Thorsen, 46 AD3d 780, 848 NYS2d 304 [2d Dept 2007]; Zasso v Maher, 226 AD2d 366, 640 NYS2d 243 [2d Dept 1996]). However, there is an exception to that principle exists where the ordinary experience of the fact finder provides sufficient basis for judging the adequacy of the professional service, or "the attorney’s conduct falls below any standard of due care" (Northrop v Thorsen, 46 AD3d at 782; Greene v Payne, Wood & Littlejohn, 197 AD2d 664, 602 NYS2d 883 [2d Dept 1993 ]). It is well settled that the exception exists in those instances where an attorney ignores a well-established filing requirement (Whalen v DeGraff, Foy, Conway, Holt-Harris & Mealey, 53 AD3d 912, 863 NYS2d 100 [3d Dept 2008]; Northrop v Thorsen, supra). Tellingly, the exception has been held to apply where an action had been marked off the calendar and the attorney failed to timely restore it (Butler v Brown, 180 AD2d 406, 579 NYS2d 79 [1st Dept 1992]). "
he plaintiffs contend that the order dated October 19, 2009 (O’Donoghue, J.) denying
DeBlasio’s cross motion to restore the case to the calendar and dismissing the complaint against
Southampton Hospital, and the decision affirming said order by the Appellate Division, Second
Department, bar Schwartzapfel from re-litigating the issue of its duty to the plaintiffs. Here, despite the
plaintiffs’ mistaken reliance on the doctrine of collateral estoppel, it is determined that they have
established that Schwartzapfel violated its duty to exercise the requisite degree of care, skill, and
diligence commonly possessed by a member of the legal community in handling the plaintiffs’ medical
malpractice action. It is beyond dispute that the failure to comply with the terms of the order which
marked the case off the trial calendar, and to move within the statutory time period to restore the case to
the calendar establish that Schwartzapfel failed to prosecute the action and to meet any standard of care
in handling the matter.