We believe (based on anecdotal reading of legal malpractice decisions) that a more than expected number of summary judgment motions are granted in favor of attorneys in legal malpractice settings. Gardner v Sacco & Fillas, LLP 2023 NY Slip Op 02865
Decided on May 31, 2023 Appellate Division, Second Department is an example of the contrary finding: affirmance in favor of the client and a very short decision as well. The takeaway when the Appellate Division says that the attorneys failed to submit sufficient evidence is that they really did not like the attorney’s position one bit.
“In September 2014, the plaintiff commenced this action against, among others, the defendants Sacco & Fillas, LLP, Tonino Sacco, Elias N. Fillas, and Lamont Rodgers (hereinafter collectively the Sacco defendants), inter alia, to recover damages for legal malpractice, alleging that he incurred damages as a result of the Sacco defendants’ failure to timely file a personal injury action on his behalf. The Sacco defendants moved for summary judgment dismissing the complaint insofar as asserted against them. In an order entered September 1, 2020, the Supreme Court, among other things, denied the Sacco defendants’ motion. The Sacco defendants appeal.”
“Here, the Supreme Court properly denied the Sacco defendants’ motion for summary judgment dismissing the complaint insofar as asserted against them. The Sacco defendants failed to submit evidence establishing, prima facie, the absence of at least one essential element of the legal [*2]malpractice cause of action (see Aqua-Trol Corp. v Wilentz, Goldman & Spitzer, P.A., 197 AD3d at 545; Fricano v Law Offs. of Tisha Adams, LLC, 194 AD3d 1016, 1018; Ferrigno v Jaghab, Jaghab & Jaghab, P.C., 152 AD3d 650, 652; Atiencia v Pinczewski, 148 AD3d 860, 861). Since the Sacco defendants failed to make their prima facie showing, we do not need to consider the sufficiency of the plaintiff’s opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).”