Plaintiff brings a legal malpractice case against attorney and alleges that the attorney did not timely file a notice of appeal, that the underlying case was dismissed on discovery grounds ant that the mistake was by the attorney, and that the attorney failed to convey a settlement offer.  Supreme Court considers the motion and finds questions of fact.  Defendant does not use an expert.

The Appellate Division, with no reasoning presented, turns the decision on its head, and grants summary judgment.  Why?

Pedote v Kelly  2015 NY Slip Op 00737  Decided on January 28, 2015  is one in a series of cases the  Appellate Division, Second Department has summarily reversed and dismissed.  There is rarely any real explanation.    "The defendant attorney represented the plaintiffs in an action against the owner of a manufactured home park and in eviction proceedings. The plaintiffs commenced this action to recover damages for legal malpractice, alleging, inter alia, that the defendant failed to file a timely notice of appeal from an order adverse to them, failed to comply with discovery, and failed to communicate to them a settlement offer. The defendant moved for summary judgment dismissing the complaint and for the imposition of sanctions pursuant to 22 NYCRR 130-1.1(a), and the plaintiffs cross-moved to amend the complaint. The Supreme Court denied the defendant’s motion and granted the plaintiffs’ cross motion.

"In an action to recover damages for legal malpractice, a plaintiff must demonstrate that an attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the breach of such duty was the proximate cause of the plaintiff’s damages" (Portilla v Law Offs. of Arcia & Flanagan, 112 AD3d 901, 901; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; Soliman v O’Connor, McGuinness, Conte, Doyle & Oleson, 118 AD3d 866, 867). "To succeed on a motion for summary judgment dismissing the complaint in a legal malpractice action, the defendant must present evidence in admissible form establishing that the plaintiff is unable to prove at least one essential element of his or her cause of action alleging legal malpractice" (Scartozzi v Potruch, 72 AD3d 787, 789-790; see Biberaj v Acocella, 120 AD3d 1285, 1286).

Here, the defendant established his prima facie entitlement to judgment as a matter of law by demonstrating that he did not fail to exercise the skill and knowledge commonly possessed by a member of the legal profession. In that respect, the defendant demonstrated that he filed a timely notice of appeal from an order adverse to the plaintiffs, that the failure to comply with discovery was the result of the plaintiffs’ decision to retain a different attorney and concomitant failure to cooperate with him, and that no settlement offer was ever communicated to him. In opposition, the plaintiffs failed to raise a triable issue of fact.

Accordingly, the Supreme Court should have granted that branch of the defendant’s motion which was for summary judgment dismissing the complaint (see Guerrera v Zysk, 119 AD3d 647, 648; Soliman v O’Connor, McGuinness, Conte, Doyle & Oleson, 118 AD3d 866)."