We had not considered the question of how a bench trial and a jury trial might differ in the use of experts.  Remembering that an expert is necessary when the experience of an ordinary trier of fact does not encompass the issues, we recently ran across Oikonomos, Inc. v Bahrenberg
2015 NY Slip Op 51300(U) [48 Misc 3d 1228(A)]  Decided on August 18, 2015  Supreme Court, Suffolk County  Pines, J. in which plaintiff does not present expert evidence at a bench trial, and instead argues that a judge has sufficient experience as a trier of fact to obviate the need for expert testimony.  The argument succeeds.

“This case arises from numerous leases, promissory notes, guarantees, and services agreements entered into between the Plaintiffs and the corporate Defendants, each of which is a not-for-profit entity. The various Plaintiffs, all for-profit corporate entities, owned by Albert and Barbara Brayson (“the Braysons”) (or, in the case of WDR Assets LLC, by the Braysons’ children) are Oikonomos, Inc. (“Oikonomos”), Stonegate Springs, LLC (“Stonegate”), Educare Systems Solutions, LLC (“Educare”), 3390 Route 112, LLC (“3390”) and WDR Assets LLC (“WDR”).

The Plaintiffs assert claims against the various lessees, promissors on notes, and guarantors of the notes and leases, all named Defendants, for breaches of their agreements. The non-profit corporate Defendants include Lake Grove at Durham, Inc. (“Lake Grove”) (which operates a school located in Connecticut), Maple Valley School, Inc (“Maple Valley”) which operates a school in Massachusetts, the Brayson Foundation Ltd. (“the Foundation”), which provided financial support to these affiliated not-for-profit schools, and Windwood Meadow Inc. (“Windwood”), which provided management services to various entities. Additionally, the Plaintiffs have sued individual Defendant, John Claude Bahrenburg (“Bahrenburg”), the Braysons’ alleged former close friend and attorney, for over a twenty year period, for legal malpractice. Plaintiffs’ contend that Bahrenburg not only represented the Braysons but, in addition, all the corporate Plaintiffs at various times and each and every named corporate Defendant. Plaintiffs also have claims against individual Defendant, Jeffrey Dryfoos (“Dryfoos”), Chairman of the Board of Defendant Windwood (2001-2012) as well as Albert Brayson’s close personal friend and college roommate, essentially for acting in concert with Bahrenburg, and utilizing their corporate positions to cause the losses that the corporate Plaintiffs have allegedly suffered.

Currently before the Court is a motion (Mot. Seq. 016) pursuant to CPLR 4401 by the Foundation, Dryfoos and Bahrenburg, made after the close of the evidence presented at trial by the Plaintiffs, for judgment as a matter of law dismissing various causes of action. The [*2]arguments in support of and in opposition to the motion are summarized below.”

“Plaintiffs argue that expert testimony regarding the malpractice claim is not necessary here because the Court, as the trier of fact, is competent to analyze and evaluate whether Bahrenburg’s conduct violated the Code of Professional Responsibility and if so, decide whether such conduct constitutes malpractice. Plaintiffs cite to case law in the Second Department holding that expert testimony is required “unless 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 780, 782 [2d Dept 2007]). Plaintiffs argue that Bahrenburg’s conduct in acting adversely to his client clearly falls below the standard of care set forth in the Code of Professional Responsibility.

Plaintiffs argue that the legal malpractice claim against Bahrenburg is not time-barred because of the continuous representation doctrine. Plaintiffs contend that the testimony and documents establish that Bahrenburg did legal work for Oikonomos and the Braysons at least through November 2006, despite the Release letter dated February 2, 2006. Thus, Plaintiffs contend that there is a triable issue of fact as to whether the representation giving rise to the malpractice claims ended in February 2006, in which case the malpractice claims first asserted in November 2009 would be untimely, or whether representation continued until November 2006 tolling the commencement of the three-year statute until then.”

“An action for legal malpractice requires proof of the following three elements: (1) the attorney’s failure to exercise that degree of care, skill and diligence commonly possessed by a member of the legal profession; (2) causation; and 3) actual damages (Prudential Ins. Co. of America v Dewey Ballantine, Bushby, Palmer & Wood, 170 AD2d 108 [1st Dept 1991], aff’d, 80 NY2d 377 [1992]; Gray v Wallman & Kramer, 184 AD2d 409 [1st Dept 1992]). To sustain a cause of action for legal malpractice, a party must show that an attorney failed to exercise “the ordinary reasonable skill and knowledge” commonly possessed by a member of the legal profession (Darby & Darby, P.C. v VSI Intern., Inc., 95 NY2d 308 [2000]). The New York Rules of Professional Conduct Code contain provisions bearing on malpractice by an attorney. Such rules are clearly relevant to a malpractice claim. A malpractice cause of action was held to lie where defendant attorney represented both sides of a transaction and allegedly withheld critical information from the plaintiff client (Sitar v Sitar, 50 AD3d 667 [2d Dept 2008]), and where a law firm’s divided loyalties impaired its professional judgment (Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1 [1st Dept 2008]). In addition, a lawyer may not seek, by contract or other means, to limit prospectively the attorney’s individual liability to a client for legal malpractice (New York Rules of Professional Conduct Rule 1.8(h)(1).

An action for legal malpractice is governed by a three year statute of limitations (CPLR 214[6]). The continuous treatment rule applied to medical malpractice actions has been extended to claims of attorney malpractice (Zorn v Gilbert, 8 NY3d 933 [2007]; Sommers v Cohen, 14 AD3d 691 [2d Dept 2005]).

To recover for an attorney’s malpractice, a plaintiff must show that such proximately caused the loss (Rudolf v Shayne, Dachs, Stanisi, Corker & Sauer, 8 NY3d 438 [2007]). In addition, it has been generally recognized that a plaintiff in such cases must satisfy a more demanding test than usual by proving that “but for” the defendant’s negligence, the plaintiff would not have sustained the claimed loss in the underlying transaction (Waggoner v Caruso, 14 NY3d 874 [2010]). The Court notes, however, that in Barnett v Schwartz, 47 AD3d 197 [2d Dept 2007], the Second Department held that the “but for” causation standard does not require a [*9]greater or more direct degree of causation than the “proximate cause” standard set forth in PJI 2:70; and, further, that the “but for” standard does not require a showing that the defendant’s malpractice was the sole proximate clause, rather than a substantial cause, of the plaintiff’s loss. This particular view has not yet been considered by the Court of Appeals.

Unless the ordinary experience of the fact finder provides a sufficient basis for judging the adequacy of the professional service or the attorney’s conduct fell below any standard of due care, expert testimony will be necessary to established that the attorney breached a standard of professional care and skill (Northrop v Thorsen, 46 AD3d 780 [2d Dept 2007]; Zasso v Maher, 26 AD2d 366 [2d Dept 1996]).

Here, viewing the evidence in the light most favorable to the Plaintiffs, accepting the Plaintiffs’ evidence as true, and giving the Plaintiffs every favorable inference that can be reasonably drawn therefrom, the Court finds that the Plaintiffs have set forth sufficient evidence to support a legal malpractice claim against Bahrenburg. The Plaintiffs have presented evidence of an attorney-client relationship with Bahrenburg continuing into November 2006 such that judgment as a matter of law pursuant to CPLR 4401 dismissing the legal malpractice claim as time barred is not warranted. Contrary to Bahrenburg’s contention, the Plaintiffs’ failure to put forth expert testimony is not fatal as the ordinary experience of this Court, the fact finder on this case, provides a sufficient basis for judging whether Bahrenburg’s alleged actions and omissions violated his fiduciary duties, which, as previously held, are subsumed within the legal malpractice claim. There has also been sufficient evidence submitted to allow the Court to determine whether any of the allegations against Bahrenburg constitute a violation of the Rules of Professional Conduct. Plaintiffs have also submitted evidence that they would not have entered into the transactions at issue and sustained losses had Bahrenburg acted properly. Therefore, the motion is denied as to the twenty seventh cause of action.”