Vioni v Carey & Assoc. LLC 2022 NY Slip Op 03805 Decided on June 09, 2022 Appellate Division, First Department is a short odd decision. Previously, the attorney’s counterclaim was dismissed with a finding that they were terminated for cause. The cause seems to be failures in expert discovery. Now, summary judgment is denied to the attorneys.
“Defendants, admittedly discharged for cause (see Vioni v Carey & Assoc., LLC, 192 AD3d 617 [1st Dept 2021]), failed to proffer any evidence that subsequent counsel did not adequately prepare plaintiff’s rebuttal expert witness for his deposition during the underlying federal litigation. Accordingly, they did not establish prima facie that, but for the intervening and superseding failures of plaintiff’s successor counsel, plaintiff would not have lost at trial (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 ; Pyne v Block & Assoc., 305 AD2d 213, 213 [1st Dept 2003]), Indeed, defendants have not shown on this record that it was not their own alleged acts of malpractice that prevented plaintiff from prevailing in her federal lawsuit, including, inter alia, their failure to timely serve expert reports, obtain a discovery stay, and be truthful when they otherwise advised plaintiff and the court that the missed expert witness deadline was a deliberate, strategic decision.”