Personal injury claims that a person might have can become the property of the Bankruptcy estate.  It is a tricky question depending on whether the bankruptcy case is in Chapter 7, 11 or 13.  Pre-Petition claims are different from post-petition claims, yet they all came together in Horvath v Budin, Reisman, Kupferberg & Bernstein  LLP 2021 NY Slip Op 30105(U)
January 13, 2021 Supreme Court, New York County Docket Number: 161339/2019 Judge: David Benjamin Cohen.

“In 2009, plaintiff filed a Chapter 13 Petition in the United States Bankruptcy Court for the District of New Jersey (“the Bankruptcy Court”) under Case No. 09-38537-KCF. Doc. 22. Plaintiff was represented in the bankruptcy proceeding by Jules Rossi, Esq. Doc. 22. On September 15, 2010, plaintiff was allegedly injured while he was a passenger in an elevator in a building in Manhattan. Doc. 21 at par. 4. Plaintiff thereafter retained the Law Offices of Michael Lamonsoff (“Lamonsoff’) to commence a personal injury action on his behalf against Gumley Haft Kleier Inc. (“GHK”) and Eltech Industries (“Eltech”). The action against GHK and Eltech was commenced in the Supreme Court, Bronx County in 2010 under Index Number 310013/10 (“the Bronx County action”). Doc. 17 at par. 16. Lamonsoff also represented plaintiff in an unrelated personal injury action commenced in New York County in 2010 under Index Number 115395/10 (“the New York County action”). Doc. 17 at par. 17.
The Bankruptcy Court confirmed the Chapter 13 plan on December 28, 2011. Doc. 23. ”

“In 2014, Eltech moved to dismiss the complaint in the Bronx County action based on the pending bankruptcy matter. Doc. 17 at par. 26. By order dated December 2, 2014, the Supreme Court, Bronx County denied the motion to dismiss. Doc. 26. By order dated March 7, 2017, the Appellate Division, First Department reversed and dismissed the complaint in the Bronx County action, stating, inter alia, that:

Plaintiffs prolonged failure to disclose this lawsuit to the Bankruptcy Court renders him judicially estopped from pursuing it … Plaintiff took an inconsistent position in the bankruptcy proceedings – that he did not have other legal claims than those listed on his schedule of assets and liabilities – and that position was adopted by the Bankruptcy Court when it confirmed the plan.”

“Here, as noted above, plaintiff claims that defendant’s actions, or inaction, regarding his bankruptcy resulted in the dismissal of the Bronx County action. Specifically, he alleges that: Defendant BUDIN, REISMAN, KUPFERBERG & BERSTEIN, LLP committed legal malpractice by failing to exercise that degree of care, skill and diligence commonly possessed by a member of the legal community. Doc. 21 at par. 60.
Plaintiff also alleges that he would have succeeded on his claim in the Bronx County action “but for the defendant’s negligence and legal malpractice.” Doc. 21 at pars. 62, 78. Further, plaintiff alleges that he sustained damages as a result of defendant’s negligence. Docs. 69, 82.
Since the complaint, viewed in the light most favorable to plaintiff, pleads a viable claim sounding in legal malpractice, that branch of defendant’s motion seeking dismissal pursuant to CPLR 3211(a)(7) is denied.”

It is an almost ironclad requirement that experts be used in legal malpractice settings, either to state the standard of ordinary rasonable skill and knowledge commonl possessed by an attorney.  In Lieberman v Green 2021 NY Slip Op 00163 Decided on January 13, 2021 Appellate Division, Second Department the client (acting pro se) didn’t hava an expert.  The result was fatal.

“The plaintiffs moved for summary judgment dismissing the counterclaim alleging legal malpractice, and the defendant opposed. In an order dated July 16, 2018, the Supreme Court, granted the plaintiffs’ motion. The defendant appeals. We affirm.

“‘In moving for summary judgment dismissing a [cause of action] alleging legal malpractice, [movant] must present evidence establishing, prima facie, that it did not breach the duty [*2]to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, or that the plaintiff did not sustain actual and ascertainable damages as a result of such deviation'” (Dominguez v Mirman, Markovitz & Landau, P.C., 180 AD3d 646, 647, quoting Mazzurco v Gordon, 173 AD3d 1003, 1003). Here, the plaintiffs submitted evidence, including an expert affirmation, demonstrating, prima facie, that, given the totality of circumstances under which the parties made their agreement on March 9, 2012, the plaintiffs did not breach their duty to exercise the ordinary reasonable skill and knowledge commonly possessed by an attorney by having the terms of the stipulation transcribed by the stenographer, and agreeing to later present such stipulation to the court to be so-ordered.

In opposition, the defendant, who did not submit an expert affidavit, failed to raise a triable issue of fact. His opposition consisted entirely of speculative and conclusory assertions (see Sang Seok NA v Schietroma, 163 AD3d 597, 599; Harris v Barbera, 163 AD3d 534, 535; Schadoff v Russ, 278 AD2d 222, 223). Accordingly, we agree with the Supreme Court’s determination granting the plaintiffs’ motion for summary judgment dismissing the defendant’s counterclaim alleging legal malpractice.”

Both Collateral Estoppel and Res Judicata were applied to two different lawsuits each arising from a Bankruptcy Proceeding.  Plaintiff loses all around in Bauhouse Group I, Inc. v Kalikow  2021 NY Slip Op 00001
Decided on January 05, 2021 Appellate Division, First Department.

“In the first order, the court correctly concluded that plaintiffs’ legal malpractice claim was barred by the doctrine of collateral estoppel in light of the prior findings in a related bankruptcy proceeding. The doctrine of collateral estoppel will “preclude[] a party from relitigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party or those in privity, whether or not the tribunals or causes of action are the same” (Ryan v New York Tel. Co., 62 NY2d 494, 500 [1984]). The court properly concluded that plaintiffs were in privity with the debtors in the bankruptcy proceeding. Factual claims concerning the validity of certain loan transactions were asserted and decided against the plaintiffs in the bankruptcy proceedings. These are the same loan transactions and factual allegations underlying the claims made in the malpractice action.

Plaintiffs’ argument that collateral estoppel does not apply to these actions because defendants were not parties to the bankruptcy proceeding is not persuasive. The law is clear that a party seeking to invoke the doctrine of collateral estoppel need not have been a party to the prior action (Vavolizza v Krieger, 39 AD2d 446, 447-448 [1st Dept 1972], affd 33 NY2d 351 [1974]). Plaintiffs’ argument that their claims are not barred by collateral estoppel because there was no claim for legal malpractice before the Bankruptcy Court also fails. As the court found, collateral estoppel precludes the relitigation of factual issues that were necessarily decided in a prior action against the same party or its privies, regardless of whether the causes of action were the same (Korea First Bank of N.Y. v Noah Enters., Ltd., 12 AD3d 321, 323 [1st Dept 2004], lv denied 4 NY3d 710 [2005] ).”

“The second order is subject to dismissal for many of the same reasons as the first order. Most fundamentally, however[*2], the court there properly applied the doctrine of res judicata to preclude plaintiffs from re-litigating the same exact claims in the second action that were raised and dismissed, with prejudice, in the first action. The doctrine of res judicata dictates that “once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy” (Marinelli Assoc. v Helmsley-Noyes Co., 265 AD2d 1, 5 [1st Dept 2000]). The requirements of res judicata are plainly met here. The first action — which involved the exact same parties, transactions, and claims — was brought to a final conclusion by the first order, wherein the complaint was dismissed with prejudice. It is indisputable that plaintiffs’ claims in the second action arise out of the same facts and are, in fact, identical to those alleged in the first action. Considering the allegations of the bankruptcy proceeding, the second action was in fact plaintiffs’ third attempt to recover based upon the same set of facts arising from the same transaction.”

Law Firm of Alexander D. Tripp, P.C. v Fiorilla
2020 NY Slip Op 34362(U) December 31, 2020 Supreme Court, New York County Docket Number: 654991/2019 Judge: Lucy Billings is a factual mess.  What is clear, is that the motion for summary judgment was unopposed and quickly granted.

“The malpractice that defendant claims occurred November 9, 2017, when his attorney in the Citigroup Global Markets proceeding agreed with Citigroup Global Markets’ attorney that its motion for sanctions raised no factual issues, obviating the need for an evidentiary hearing. Defendant claims that the waiver of an evidentiary hearing was malpractice, because he did raise factual issues that would have been determined in his favor at a hearing, Sejfuloski v. Michelstein & Assoc., PLLC, 137 A.D.2d 549, 549-50 (1st Dep’t 2016); Tenasca Delgado v. Bretz &
Coven, LLP, 109 A.D.3d 38, 43-44 (1st Dep’t 2013), and would have reduced the $213,832.50 award of sanctions, attorneys’ fees, and expenses against him. Baram v. Person, 153 A.D.3d 1183, 1183 (1st Dep’t 2017); Caso v. Miranda Sambursky Sloane Sklarin Vereniotis LLP, 150 A.D.3d 422, 423 (1st Dep’t 2017) i O’Neal v. Muchnick Golieb & Golieb, P.C., 149 A.D.3d 636, 636 (1st Dep’t 2017); Rubin v. Duncan, Fish & Vogel. L.L.P., 148 A.D.3d 432, 433
(1st Dep’t 2017). The absence of a continuing attorney-client relationship between plaintiff and defendant when this alleged malpractice occurred, however, bars defendant’s claim for legal malpractice against plaintiff. Seaman v. Schulte Roth & Zabel LLP, 176 A.D.3d 538, 538-39 (1st Dep’t 2019) i Barrett v. Goldstein, 161 A.D.3d 472, 473 (1st Dep’t 2018); Cabrera v. Collazo, 115 A.D.3d 147, 153 (1st Dep’t 2014); Waggoner v. Caruso, 68 A.D.3d 1, 5 (1st Dep’t 2009), aff’d, 14 N.Y.3d 874 (2010).”

Bianco v Law Offs. of Yuri Prakhin, 2020 NY Slip Op 07849 [189 AD3d 1326]
December 23, 2020 Appellate Division, Second Department  tells a familiar legal malpractice story.  Plaintiff slips and falls on ice on subway steps in NYC.  Attorneys hired by her successfully file a Notice of Claim against NYC, but do not file against the NYCTA.  Service of a Notice of Claim is a condition prerequisite to suing the NYCTA.  Case goes on to attorney B and attorney C.

“The plaintiff allegedly slipped and fell on ice on a subway staircase in Brooklyn on January 21, 2014. Shortly thereafter, she retained the defendants Law Office of Yuriy Prahkin and Yuriy Prahkin (hereinafter together the Prahkin defendants) to represent her in a personal injury action relating to the fall. The Prahkin defendants served a timely notice of claim on the City of New York, but failed to do so with respect to the New York City Transit Authority (hereinafter NYCTA). In July 2014, the plaintiff retained the defendants Schneider Law Group and William Z. Schneider (hereinafter together the Schneider defendants) as successor counsel to the Prahkin defendants. The Schneider defendants, in turn, retained the defendants Steven C. Kletzkin, PLLC, and Steven C. Kletzkin (hereinafter together the Kletzkin defendants) as trial counsel representing the plaintiff in an action against the NYCTA.

[*2] In February 2015, the Schneider defendants served an untimely notice of claim upon NYCTA. In March 2015, the Kletzkin defendants commenced an action on the plaintiff’s behalf against the NYCTA to recover damages for the personal injuries she allegedly sustained as a result of the slip and fall. In an order dated April 15, 2016, the Supreme Court granted the NYCTA’s motion to dismiss the complaint in the personal injury action against the NYCTA “with prejudice, and no opposition submitted thereto.”

There is no mystery in the legal malpractice claims.  The mystery resides in how a Judiciary Law 487 claim survives.  The Court does not elucidate.

“Contrary to the Kletzkin defendants’ contention, the complaint adequately states a cause of action to recover damages for violation of Judiciary Law § 487. Contrary to the Schneider defendants’ contention, the cause of action alleging violation of Judiciary Law § 487 is not duplicative of the cause of action alleging legal malpractice. “A violation of Judiciary Law § 487 requires an intent to deceive (see Judiciary Law § 487), whereas a legal malpractice claim is based on negligent conduct” (Moormann v Perini & Hoerger, 65 AD3d 1106, 1108 [2009]; see Bill Birds, Inc. v Stein Law Firm, P.C., 164 AD3d 635, 637 [2018], affd 35 NY3d 173 [2020]).”

CPLR 3211(a)(1) allows for dismissal based upon “documentary evidence.”  Such a win is usually “on the merits” and generally allows for later res judicata and collateral estoppel treatment.  Dismissal under CPLR 3211(a)(7), while more common, is not on the merits and is not “with prejudice.”  the later effects are much smaller, and a case can be repled under CPLR 205.  Cali v Maio  2020 NY Slip Op 07853 Decided on December 23, 2020 Appellate Division, Second Department displays the reasoning process.

“Contrary to the determination of the Supreme Court, the defendants failed to establish that they were entitled to dismissal of the cause of action to recover damages for legal malpractice pursuant to CPLR 3211(a)(1). “To succeed on a motion to dismiss based upon documentary evidence pursuant to CPLR 3211(a)(1), the documentary evidence must utterly refute the plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Gould v Decolator, 121 AD3d 845, 847; see Leon v Martinez, 84 NY2d 83, 88). Construing the complaint liberally, accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every possible inference, as we are required to do (see Leon v Martinez, 84 NY2d at 87; Granada Condominium III Assn. v Palomino, 78 AD3d 996, 996), the documentary evidence submitted by the defendants failed to utterly refute the plaintiff’s allegations of legal malpractice, as augmented [*2]by her affidavit in opposition to their motion (see Garcia v Polsky, Shouldice & Rosen, P.C., 161 AD3d 828, 830; Anderson v Armentano, 139 AD3d 769, 771).

However, the defendants were entitled to dismissal of the causes of action to recover damages for legal malpractice and breach of contract under the branch of their motion which was pursuant to CPLR 3211(a)(7). “On a motion to dismiss for failure to state a cause of action under CPLR 3211(a)(7), ‘[w]e accept the facts as alleged in the complaint as true, accord plaintiff[ ] the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory'” (Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 141, quoting Leon v Martinez, 84 NY2d at 87-88).

“In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the 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 plaintiff to sustain actual and ascertainable damages” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442, quoting McCoy v Feinman, 99 NY2d 295, 301). “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 at 442). Here, the plaintiff failed to adequately plead specific factual allegations showing that, but for the defendants’ alleged negligence, she would have obtained a more favorable outcome in the foreclosure action (see Janker v Silver, Forrester & Lesser, P.C., 135 AD3d 908, 909; Benishai v Epstein, 116 AD3d 726, 728). Although the plaintiff’s alleged damages are based on the loss of her home due to foreclosure, the plaintiff failed to allege that, but for the defendants’ negligence, the foreclosure action would not have resulted in a judgment of foreclosure and sale. Accordingly, the complaint failed to state a cause of action to recover damages for legal malpractice and the defendants were entitled to dismissal of that cause of action pursuant to CPLR 3211(a)(7) (see Janker v Silver, Forrester & Lesser, P.C., 135 AD3d at 909; Benishai v Epstein, 116 AD3d at 728). Since the breach of contract cause of action arose from the same operative facts as the legal malpractice cause of action and did not allege distinct and different damages it was duplicative of the legal malpractice cause of action and thus, also subject to dismissal (see Prott v Lewin & Baglio, LLP, 150 AD3d 908, 910; Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d 812, 813-814).

The defendants also were entitled to dismissal of the third cause of action, which alleged that the defendants overbilled the plaintiff for legal fees. Although overbilling can constitute a cause of action to recover damages for breach of contract by a client against her or his attorney (see O’Connor v Blodnick, Abramowitz and Blodnick, 295 AD2d 586, 587), here, that cause of action was barred by res judicata under CPLR 3211(a)(5). The defendants submitted, among other things, an arbitration case report which indicated that the parties had participated in an arbitration relating to fees owed for legal services rendered by the defendants. The plaintiff’s allegations evidence that her overbilling cause of action is directly related to the fee dispute, and that it should have been litigated during that arbitration proceeding. Thus, the final arbitration award bars the cause of action to recover damages for overbilling (see CPLR 3211[a][5]; Breslin Realty Dev. Corp. v Shaw, 72 AD3d 258, 263, 265; see also Mahler v Campagna, 60 AD3d 1009, 1012).”

As  Schoolman v. NcAuliffe 2020 NY Slip Op 34228(U) December 21, 2020 Supreme Court, Suffolk County Docket Number: 4311/2019 Judge: Sanford Neil Berland demonstrates, bankruptcy can serve as a sheering tool. Enter into bankruptcy and sone/all of your possessions are gone.

“”‘Upon the filing of a voluntary bankruptcy petition. all property which a debtor owns.including a cause of action, vests in the bankruptcy estate,”‘(Burbacki v. Abrams, Fensterman, Eisman, Formato, Ferrara & Wolf, LLP, 172 AD3d 1300, l 300. 99 NYS3d 671 [2d Dept 2019), quoting Keegan v. Moriarty-Morris, 153 AD3d 683, 684 (2d Dept 20 17), citing
11 USC§ 541 [a][IJ; In re Oshome, 2013 WL 113177662, *2, 2013 US Dist LEXIS 190402, *5-6 {SONY 2013)). Therefore, a plaintiff may not maintain a legal malpractice cause of action in his or her individual capacity relating to a bankruptcy. The right to sue is only exercisable by
the trustee in bankruptcy. whether the claim asserted in the complaint accrued prior to the filing of the bankruptcy petition. or post-petition (see 11 USC § 541 [a][ I): Burbacki v. Abrams, Fensterman, Eiseman, Formato, Ferrara & Wolf, LLP, supra 172 AD3d at 1300, citing Williams v. Stein, 6 AD3d 197, 775 NYS2d 255 (1st Dept 2004). /n re Osborne, 2013 WL 11317662, *2-3. 2013 US Dist LEXIS I 90402. *7-8. Jn re Alvarez, 224 F3d 1273. 1275-1278 [11th Cir 2000)). Therefore, to the extent that plaintiff asserts claims for legal malpractice in connection with defendant’s representation of the three companies, plaintiff lacks the capacity to sue as a matter of bankruptcy law.”

Attorney takes over for departing defense counsel in a trip-and-fall case.  Attorney moves for dismissal, fails.  Attorney takes the case to trial, succeeds with a defense verdict.  Attorny want to get paid, isn’t.  Attorney sues client  Flanagan Law, PLLC v Perno  2020 NY Slip Op 51488(U) [70 Misc 3d 1201(A)] Decided on December 18, 2020 Supreme Court, New York County Lebovits, J. discects both sides’ errors.

“I. Plaintiff’s Motion for Summary Judgment

A. Plaintiff’s Claim for an Account Stated

Plaintiff moves for summary judgment on its cause of action for an account stated. The motion is denied.

An account-stated claim arises from an implicit agreement between the parties on the amount that one party owes the other on past transactions between them. (See Rodkinson v Haecker, 248 NY 480, 485 [1928].) A party seeking judgment as a matter of law on an account-stated claim must show that the invoices were properly addressed and mailed to a client, using a regular office mailing procedure. (See Morrison Cohen Singer & Weinstein, LLP v Brophy, 19 AD3d 161, 161-162 [1st Dept 2005].) In addition, plaintiff must establish “with admissible evidence, the receipt and retention of bills without objection within a reasonable time.” (LD Exch., Inc. v Orion Telecom. Corp., 302 AD2d 565, 565 [2d Dept 2003].)

Plaintiff has not met that burden here. It relies on one conclusory statement in an affidavit from its principal, Richard J. Flanagan, that invoices were mailed to the address provided by defendants based on plaintiff’s normal office procedure.^[FN1] But plaintiff provides no information about that putative office procedure. And there is no documentary evidence indicating that the invoices were mailed, mailed to the correct address, paid in part, or received and retained without objection. Indeed, the invoices attached to plaintiff’s motion papers do not [*3]even list defendants’ address(es) at all.^[FN2]

B. Plaintiff’s Claim for Breach of Contract

Plaintiff also moves for summary judgment on its contract claim. This court concludes that the motion should be denied because plaintiff has not established prima face its entitlement to judgment as a matter of law.

To prevail on a breach of contract claim, a party must establish the existence of a contract, the plaintiff’s performance, the defendant’s breach of that contract, and resulting damages. (Harris v Seward Park Hous. Corp., 79 AD3d 425, 426 [1st Dept 2010].) In the case of an attorney-client relationship, 22 NYCRR § 1215.1 requires attorneys to provide all clients with a written letter of engagement or to execute a written retainer agreement explaining the scope of legal services, the fees to be charged, billing practices to be followed, and the right to arbitrate a dispute. (Seth Rubenstein, P.C. v Ganea, 41 AD3d 54, 60 [2d Dept 2007].)

Here, plaintiff has not submitted an attorney-client retainer agreement or letter of engagement to establish that it satisfied the requirements of § 1215.1. Defendant Thomas Perno also represents in an affidavit that no such letter or agreement was provided or executed. Although plaintiff disputes Perno’s representation in his affidavit, it does not offer any documentary evidence supporting its assertion that a retainer agreement existed from the outset.^[FN3] Thus, with respect to the breach-of-contract claim plaintiff has thus failed to offer sufficient evidence to meet its initial prima facie burden at summary judgment.

C. Plaintiff’s Claim in Quantum Meruit

Alternatively, plaintiff claims that it is entitled to the reasonable value of its legal services in quantum meruit. This court again concludes that plaintiff’s motion for summary judgment should be denied.

It is true that an attorney’s failure to comply with the rules on retainer agreements or engagement letters established in 22 NYCRR § 1215.1 would not preclude it from later recovering legal fees in quantum meruit. (See Miller v Nadler, 60 AD3d 499, 500 [1st Dept 2009].) But plaintiff has not established the absence of any material dispute of fact. To recover in quantum meruit, a plaintiff must establish “(1) the performance of services in good faith, (2) the acceptance of the services by the person to whom they are rendered, (3) an expectation of compensation therefor, and (4) the reasonable value of the services.” (Fulbright & Jaworski, LLP v Carucci, 63 AD3d 487, 489 [1st Dept 2009].) Defendants in this case have submitted affidavits and documents to dispute that plaintiff performed services in good faith—suggesting both that plaintiff padded its legal bills by performing unnecessary services and submitted a bare-bones summary-judgment motion that was plainly inadequate on its face. This court concludes that defendants have thereby established a material dispute of fact that precludes the grant of summary judgment on plaintiff’s quantum-meruit claim.

II. Defendants’ Cross-Motion for Summary Judgment

Defendants cross-move for summary judgment on their malpractice counterclaim. The motion is denied.

A party must establish three elements to recover on a legal-malpractice claim: negligence of the attorney accused of malpractice, proximate causation between the attorney’s negligence and the loss sustained by the client, and proof of actual damages. (See Levine v Lacher & Lovell-Taylor, 256 AD2d 147, 149 [1st Dept 1998].) The first element requires a malpractice claimant to adduce evidence that establishes, through more than allegations of deficiencies in plaintiff’s conduct as an attorney, that plaintiff failed to meet the standard of professional care and skill. (See Thaler & Thaler v Gupta, 208 AD2d 1130, 1132 [3d Dept 1994].) To show proximate cause in a legal malpractice claim, the claimant must establish that “but for” the attorney’s negligence, the claimant would have prevailed or would not have sustained any damages. (See Levine, 256 AD2d at 149.) Therefore, “to sustain a claim for legal malpractice, a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff, and that the plaintiff would have succeeded on the merits of the Underlying Action ‘but for’ the attorney’s negligence.” (Leder v Spiegel, 9 NY3d 836, 837 [2007] [internal citations omitted].)

Defendants here emphasize that in their view plaintiff’s summary-judgment motion in the underlying action was so thin and unsupported as to fall below basic standards of professional care. And they assert that as a result of the (putative) deficiencies of this affidavit, defendants fared worse at summary judgment than other defendants with weaker positions in the underlying action. This court is skeptical, though, that defendants’ legal position in the underlying action (or that of the other defendants in the action), and thus the requisites of a proper summary-judgment motion in that action, are “part of an ordinary person’s daily experience.” (Suppiah v Kalish, 76 AD3d 829, 832 [1st Dept 2010] [reversing grant of summary judgment on malpractice claim].) Defendants were therefore required to come forward on this motion with an expert affidavit to [*4]establish each element of their malpractice claim. They have not done so.

Additionally, defendants have not shown—as opposed to merely asserting—that their legal position in the underlying action was comparable or even stronger than that of other defendants who prevailed at summary judgment. And although defendants maintain that their position was so strong that the judge in the underlying action dismissed the claims against them sua sponte at trial, they have not supported that claim with documentary evidence.

This court concludes that in these circumstances, defendants have not established the absence of any factual dispute and that they are entitled to judgment as a matter of law on their malpractice counterclaim.

Accordingly, it is

ORDERED that plaintiff’s motion for summary judgment under CPLR 3212 is denied; and it is further

ORDERED that defendants’ cross-motion for summary judgment under CPLR 3212 on their malpractice counterclaim is denied.