Kivo v Louis F. Burke, P.C. 2020 NY Slip Op 05680 [187 AD3d 503]
October 13, 2020 Appellate Division, First Department reminds us that an expert is (almost) always needed. Here, the absence of an expert was fatal to the motion defense.
“In this legal malpractice action, defendants, through their expert’s affidavit, established prima facie entitlement to judgment as a matter of law by demonstrating that plaintiff could not prove that, but for their alleged negligence, he would have been awarded a greater recovery in an underlying FINRA (Financial Industry Regulatory Authority) litigation (see Nomura Asset Capital Corp. at 49-50; Agate, 57 AD3d at 342). Defendants’ showing was not refuted by plaintiff who was required to submit an expert affidavit in opposition. Absent an expert’s affidavit, plaintiff’s unsupported allegations that defendants’ breached their duty of care by, among other things, not discovering certain proof to support his claims in the underlying action are insufficient to raise a triable issue of fact (see Tran Han Ho v Brackley, 69 AD3d 533, 534 [1st Dept 2010], lv denied 15 NY3d 950 ; Merlin Biomed Asset Mgt., LLC v Wolf Block Schorr & Solis-Cohen LLP, 23 AD3d 243 [1st Dept 2005]). Plaintiff’s dissatisfaction with how defendants conducted the arbitration hearing fails to amount to malpractice, absent a showing that defendants’ conduct was unreasonable (see Kassel v Donohue, 127 AD3d 674 [1st Dept 2015], lv dismissed 26 NY3d 940 ).”