In the Surrogates’ Court, cases move slowly, in keeping with the universal understanding that the main character in the drama is dead.  Steffan v Wilensky   2015 NY Slip Op 31194(U)  July 8, 2015  Supreme Court, New York County  Docket Number: 150020/11  Judge: Cynthia S. Kern may well be an extreme example.  Decedent died in 1993, with about $100,000 in the bank.  The bank account was in two names, perhaps so that the second named person could pay medical bills for decedent.  It was not until 2006 that the executor sued the bank. Why the 13 year delay?

We don’t know, but we do know that the case

“In or around June 2006, Wilensky filed a proceeding against Chase in Surrogate’s Court,
New York County, pursuant to Surrogate’s Court Procedure Act (“SCPA”) § 2103 (the “SCPA
2103 Proceeding”) seeking delivery of the funds in the Chemical Accoui:it to the Estate. Chase
moved to dismiss the petition as time-barred, which was granted on or aoout May 7, 2009. In
dismissing the petition, the court held that the Estate’s “cause of action arose no later than 1999,
when. the bank acknowledged the existence of the account in its letter inviting reactivation.
Since the current proceeding was not commenced until 2006, it is barred ‘by the six-year statute
of limitations.”
In or around 2011, plaintiff commenced the instant action against’ Wilensky alleging a
cause of action for legal malpractice, specifically alleging that as counsel for the Estate,
Wilensky owed it a duty to render legal services in a competent and professional manner and to
act with ordinary and reasonable skill, care and diligence and that Wilensky instead acted
negligently under the circumstances by failing to, inter alia, timely file the SCPA 2103
Proceeding. Plaintiff now moves for an Order pursuant to CPLR § 3212 granting it summary
judgment on its complaint.
On a motion for summary judgment, the movant bears the burden of presenting sufficient
evidence to demonstrate the absence of any material issues of fact. See Alvarez v. Prospect
Hosp .. 68 N. Y.2d 320, 324 (1986). Once the movant establishes a prima facie right to judgment
as a matter of law, the burden shifts to the party opposing the motion to “produce evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim.”  Zuckerman v. City of New York, 49 NY2d 557,562 (1980). However, mere conclusions, expressions of hope or unsubstantiated allegations or asserti.ons are insufficient” to defeat summary judgment. Id. A prima facie case for legal malpractice requires a plaintiff to establish “that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff, and that the plaintiff would have succeeded on the merits of the underlying action ‘but for’ the attorney’s negligence.” Leder v. Spigel, 9 N.Y.3d 836 (2007) (quoting Am-Base Corp. V Davis Polk & Wardwell, 8 N.Y.3d 428, 434 (2007)). In the instant action, plaintiff has failed to establish its prima facie right to summary judgment on its claim for legal malpractice as it has failed to demonstrate that it would have succeeded on the merits of the SCPA 2103 Proceeding “but for” Wilensk:y’s negligence in untimely commencing the proceeding. Based on the evidence before this court, even if the SCPA 2103 Proceeding had been timely commenced, plaintiff has failed;to establish that it ” would have been successful as a matter of law as there exist issues of fact as to whether plaintiff would have been entitled to recover the funds in the Chemical Account pursuant to the Banking Law.”