Generally speaking, we find that Courts favor attorneys in legal malpractice settings.  Once in a while the opposite is true, and as always, the Appellate Division reviews these decisions and corrects any mistakes.

Jorge v Hector Atilio Marichal, P.C. 2016 NY Slip Op 04911  Decided on June 22, 2016
Appellate Division, Second Department discusses a case in which Supreme Court granted summary judgment to Plaintiff only to reverse.

“To sustain a cause of action alleging legal malpractice, a plaintiff 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 attorney’s breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages (see Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 49-50; Lieberman v Green, _____ AD3d _____, 2016 NY Slip Op 03717 [2d Dept 2016]). “Proximate cause” in the context of legal malpractice means that the plaintiff would have succeeded on the merits of the underlying action or that the plaintiff would not have sustained actual and ascertainable damages but for the attorney’s negligence (see Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d at 50).

Here, the defendant represented the plaintiff in the plaintiff’s unsuccessful attempt to purchase shares in a cooperative apartment. The plaintiff contends that the defendant committed malpractice by failing to give timely notice of the plaintiff’s intention to cancel the contract, and that the defendant’s failure to give such notice resulted in the loss of the plaintiff’s down payment and other damages.

The plaintiff failed to establish his prima facie entitlement to judgment as a matter of law, as the evidence he submitted in support of his motion demonstrated the existence of triable issues of fact as to whether he had complied with the provisions of the contract under which he would have had the right to cancel the contract (see Humbert v Allen, 89 AD3d 804, 806-807). Accordingly, the plaintiff failed to establish, prima facie, that any negligence by the defendant proximately caused his damages. Thus, the plaintiff’s motion for summary judgment on the complaint should have been denied, without regard to the sufficiency of the defendant’s opposition [*2]papers (see Lauinger v Surf’s Out at Kismet, LLC, 134 AD3d 681, 682).”