• Failure to Offer Expert Proof Explaining Standard of Professional Care and Skill Sinks Malpractice Claim Before Reaching Jury: Schlenker v Cascino
  • May 20, 2013 | Author: Matthew D. Donovan
  • Law Firm: Farrell Fritz, P.C. - New York Office
  • In an April 12, 2013, decision by Justice Plotkin, the court granted plaintiff’s motion for a directed verdict dismissing defendants’ counterclaim for legal malpractice.  Defendants’ claim arose out of plaintiff’s prior representation of defendants at a trial of an enforcement action brought by a town against defendants for depositing waste and operating a commercial recycling business without authorization.  The primary defense presented at the enforcement trial was that the town had unreasonably restricted defendants’ rights to farm under section 305-a of the Agriculture and Markets Law (the “AML defense”).  The trial court ruled in favor of the town, finding that defendants had violated certain provisions of the town code.

    Plaintiff later sued defendants to recover fees for legal services in connection with his representation of defendants at the enforcement trial.  Defendants counterclaimed for malpractice, contending that plaintiff failed to present certain evidence in support of the AML defense and failed to make certain arguments in his post-trial submissions.  Plaintiff moved for summary judgment dismissing defendants’ counterclaim, and the court denied the motion.  Defendants then sought an adjournment of trial on their malpractice claim and moved for leave to take late expert disclosure and to retain an expert.  The court denied defendants’ motion.  At the conclusion of the malpractice trial, plaintiff moved for a directed verdict.

    The court granted plaintiff’s motion, finding that counsel’s selection of evidence to be presented at trial and arguments to be presented in post-trial submissions generally is not actionable as malpractice.  In any event, the court found such conduct to be a “highly discretionary function” that “falls well outside the ken of an average juror” to determine whether counsel properly exercised his professional judgment.  Based in large part on defendants’ failure to offer expert proof “delineating the relevant standard of professional care and skill,” the court concluded that “there is no rational process by which a jury could find that plaintiff failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession in representing defendants at trial.”

    Schlenker v Cascino, Sup Ct, Albany County, April 12, 2013, Plotkin, J., Index No. 5650/11