Summary judgment denied where defendant in a legal malpractice action failed to submit an expert affirmation/affidavit in support of its motion

N. Flatts LLC v Belkin Burden Goldman, LLP, _AD3d_, 2023 NY Slip Op 02954 (1st Dep’t 2023), a short three paragraph legal malpractice decision touches on a number of important CPLR issues.

Plaintiff’s complaint alleged the defendant attorney negligently represented a building owner seeking to convert a building to residential use.  Defendant moved for summary judgment “contend[ing] that it had timely filed an article 7-B compliance form on plaintiff’s behalf in reliance on the certification of plaintiff’s architect, and that the filing of that form prohibited it from seeking a time extension to achieve article 7-B compliance.”

The First Department affirmed the motion court’s denial of the motion:

Defendant did not satisfy its prima facie burden of establishing its entitlement to summary judgment dismissing the complaint as a matter of law, as defendant failed to submit an expert opinion demonstrating that it did not perform below the ordinary reasonable skill and care possessed by an average member of the legal community (see Suppiah v Kalish, 76 AD3d 829, 832 [1st Dept 2010]).

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[Defendant] has not submitted an expert affidavit establishing that its reliance on the architect’s opinion was reasonable under the circumstances, or explaining how defendant was prohibited from withdrawing the filed form and seeking a time extension to comply with article 7-B. Moreover, absent an expert affidavit, defendant failed to establish prima facie that its alleged negligence in its the handling of the article 7-B compliance form was not a proximate cause of plaintiff’s losses (see id.).

N. Flatts LLC v Belkin Burden Goldman, LLP, _AD3d_, 2023 NY Slip Op 02954 (1st Dep’t 2023)

Defendant’s summary judgment motion was made at the outset of the action, and the First Department held that the motion court “properly denied the prediscovery motion as premature, given plaintiff’s showing that facts essential to justify opposition to defendant’s motion may lie within defendant’s exclusive knowledge or control:”

In response to defendant’s claim that it was not aware of potential issues with the architect’s certification of compliance until the August 2021 conference, after the May 2021 deadline to apply for an extension had expired, plaintiff pointed out that its tenants had disputed the architect’s compliance opinion as early as January 2021. Discovery is necessary to shed light on when defendant knew of a potential problem with the filed article 7-B compliance form, and whether defendant could have timely withdrawn that form and sought a timely extension to achieve compliance.

N. Flatts LLC v Belkin Burden Goldman, LLP, _AD3d_, 2023 NY Slip Op 02954 (1st Dep’t 2023)

Two other issues were addressed.  First, defendant was not entitled to summary judgment on its counterclaims for unpaid legal fees, “because plaintiff’s malpractice cause of action is “intertwined” with those claims [for fees].”  Second, defendant asserted two counterclaims for sanctions, the first under 22 NYCRR 130-1.1 and the second under CPLR 8303-a.  Neither counterclaim was viable because “New York does not recognize independent causes of action for sanctions under [either provision],” and the appellate court further held that “[i]n any event, the record before us does not support a finding that plaintiff’s action was frivolous, brought in bad faith, or undertaken to harass or maliciously injure defendant.

Decision Date: June 1, 2023

Practical Practice Point

While there are advantages to moving for summary judgment early in the life of an action, the earlier the motion is made the more likely the opposing party will oppose the motion by invoking CPLR 3212(f):

(f) Facts unavailable to opposing party. Should it appear from affidavits submitted in opposition to the motion that facts essential to justify opposition may exist but cannot then be stated, the court may deny the motion or may order a continuance to permit affidavits to be obtained or disclosure to be had and may make such other order as may be just.

In North Flatts, the reason the plaintiff could not set forth certain facts in opposition is that those facts “may lie within defendant’s exclusive knowledge or control,” thus requiring denial of the motion.  Normally, the defendant would be able to renew its motion for summary judgment upon the completion of disclosure, though when, as here, the motion was denied for the failure to furnish an expert affirmation/affidavit, that prima facie failure by the movant should bar a subsequent motion seeking the same relief on the same basis under the rule barring successive summary judgment motions.  Aurora Loan Servs., LLC v Yogev, 194 AD3d 996 (2021).

The decision cited by the First Department for denying the motion due to the lack of an expert to support the motion, Suppiah v Kalish, 76 AD3d 829 (1st Dept 2010), was also legal malpractice action.  The First Department explained:

We reverse because defendant failed to satisfy his prima facie burden of establishing entitlement to judgment as a matter of law. The issues in this case are not part of an ordinary person’s daily experience, and to prevail at trial, plaintiff will be required to establish by expert testimony that defendant failed to perform in a professionally competent manner. As this is a motion for summary judgment, the burden rests on the moving party–here, defendant–to establish through expert opinion that he did not perform below the ordinary reasonable skill and care possessed by an average member of the legal community. Also, defendant was required, on this motion, to establish through an expert’s affidavit that even if he did commit malpractice, his actions were not the proximate cause of plaintiff’s loss. By failing to submit the affidavit of an expert, defendant never shifted the burden to plaintiff.

The decision cited by the First Department on the intertwining of the claims for legal malpractice and counterclaims for legal fees, Emery Celli Brinckerhoff & Abady, LLP v Rose, 111 AD3d 453, 454 (1st Dept 2013), set forth the applicable rule:

If a defendant client’s legal malpractice claim is intertwined with a plaintiff law firm’s claim for legal fees, the plaintiff will not be entitled to summary judgment on its account stated claim. However, if the malpractice claim is not so intertwined, courts are not precluded from granting the plaintiff summary judgment.

And it is worth remembering that 22 NYCRR 130-1.1 and CPLR 8303-a provide independent, though partially overlapping, bases for sanctions for frivolous conduct.