Plaintiff is injured on a Greyhound Bus, and sues.  Case is litigated to note of issue, and then “deemed abandoned.”  A new law firm is hired but they do not move to restore within the year.  After several years, a motion is made to restore, which is denied.  A legal malpractice case follows, and after much litigation it too is dismissed.  An appeal follows, and fails.

In Sang Seok NA v Schietroma  2018 NY Slip Op 05068 Decided on July 5, 2018 Appellate Division, Second Department  the Court determines that there was no good claim to be made.

“To recover damages for legal malpractice, a plaintiff must prove that the defendant failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that this failure proximately caused the plaintiff to suffer damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; Ragunandan v Donado, 150 AD3d 1289, 1290). To establish causation, the plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the defendant attorney’s negligence (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442).

It is well settled that in order to be entitled to summary judgment, the movant “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v New York Univ. Med. Center, 64 NY2d 851, 853). “It is a defendant’s burden, when it is the party moving for summary judgment, to demonstrate affirmatively the merits of a defense, which cannot be sustained by pointing out gaps in the plaintiff’s proof” (Quantum Corporate Funding, Ltd. v Ellis, 126 AD3d 866, 871; see Bivona v Danna & Assoc., P.C., 123 AD3d 959, 960; Kempf v Magida, 116 AD3d 736, 737; Gamer v Ross, 49 AD3d 598, 600). Once a defendant makes a prima facie showing, the burden shifts to the plaintiff to raise a triable issue of fact (see Valley Ventures, LLC v Joseph J. Haspel, PLLC, 102 AD3d 955, 956; Schadoff v Russ, 278 AD2d 222, 223).

Here, the Schietroma defendants met their burden by establishing, prima facie, that their alleged negligence did not proximately cause the plaintiff’s damages by showing that the plaintiff would not have succeeded on the merits of the underlying action. In opposition, the plaintiff failed to raise a triable issue of fact (see Kaloakas Mgt. Corp. v Lawrence & Walsh, P.C., 157 AD3d 778, 779; Richmond Holdings, LLC v David S. Frankel, P.C., 150 AD3d 1168, 1168), since his opposition consisted entirely of speculation and conclusory assertions (see Kaloakas Mgt. Corp. v Lawrence & Walsh, P.C., 157 AD3d at 779; Financial Servs. Veh. Trust v Saad, 137 AD3d 849, 853; Cusimano v Wilson, Elser, Moskowitz, Edelman & Dicker LLP, 118 AD3d 542, 542; Holschauer v Fisher, 5 AD3d 553, 554). Accordingly, we agree with the Supreme Court’s determination to grant that branch of the Schietroma defendants’ motion which was for summary judgment dismissing the complaint insofar as asserted against them.”