Lang v DiPaolo 2023 NY Slip Op 06519 Decided on December 20, 2023 Appellate Division, Second Department teaches three lessons in legal malpractice litigation in a one page decision. The three are: (1) alleging proximate cause, (2) Subsequent attorney principles, and (3) account stated.

“In May 2017, the plaintiff commenced this action against the defendants, his former counsel in a divorce proceeding (hereinafter former counsel), to recover damages for legal malpractice and related claims. The plaintiff alleged, inter alia, that former counsel was negligent in representing him in the divorce action. Former counsel interposed a counterclaim against the plaintiff, to recover on an account stated in the total sum of $1,610, alleging that the plaintiff owed unpaid legal fees. Following the completion of discovery, former counsel moved for summary judgment dismissing the complaint and to recover on the counterclaim. In an order entered May 12, 2020, the Supreme Court denied the motion. Former counsel appeals. We reverse.

A plaintiff seeking to recover damages for legal malpractice must prove that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages (see McCoy v Feinman, 99 NY2d 295, 301-302). “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; see Valley Ventures, LLC v Joseph J. Haspel, PLLC, 102 AD3d 955, 956). A defendant moving for summary judgment dismissing a legal malpractice cause of action has the burden of establishing prima facie that he or she did not fail to exercise such skill and knowledge, or that the claimed departure did not proximately cause the plaintiff to sustain damages (see EDJ Realty, Inc. v Siegel, 202 AD3d 1059, 1060). Once a defendant makes this prima facie showing, the burden shifts to the plaintiff to raise a triable issue of fact (see id. at 1061; Valley Ventures, LLC v Joseph J. Haspel, PLLC, 102 AD3d at 956).

Here, former counsel established their prima facie entitlement to judgment as a matter [*2]of law dismissing the complaint by demonstrating that their actions did not proximately cause the plaintiff’s alleged damages, and that subsequent counsel had a sufficient opportunity to protect the plaintiff’s rights (see Parklex Assoc. v Flemming Zulack Williamson Zauderer, LLP, 118 AD3d 968, 970; Katz v Herzfeld & Rubin, P.C., 48 AD3d 640, 641). In opposition, the plaintiff failed to raise a triable issue of fact as the plaintiff failed to address the issue of proximate cause (see Givens v De Moya, 193 AD3d 691, 693).

The Supreme Court also should have granted the branch of motion by former counsel which was for summary judgment on their counterclaim to recover on an account stated in the total sum of $1,610. “An account stated is an agreement between parties, based upon their prior transactions, with respect to the correctness of the account items and the specific balance due” (Citibank [South Dakota], N.A. v Abraham, 138 AD3d 1053, 1056; see Michael B. Shulman & Assoc., P.C. v Canzona, 201 AD3d 716, 717). Here, former counsel demonstrated their prima facie establishment to judgment as a matter of law on their counterclaim to recover legal fees on an account stated in the total sum of $1,610 (see Givens v De Moya, 193 AD3d at 693-694; Joseph W. Ryan, Jr., P.C. v Faibish, 136 AD3d 984, 985). In opposition, the plaintiff failed to raise a triable issue of fact.”