Lever v. Roesch, 101 A.D.3d 954 (N.Y. App. Div. 2012). · Go Syfert
Lever v. Roesch, 101 A.D.3d 954 (N.Y. App. Div. 2012). Cases Citing This Book View Copy Cite
9 citation events (9 in the last 25 years) across 1 distinct court.
Strongest positive: Dawson v. Schoenberg (nyappdiv, 2015-06-03)
Top citers, strongest first. 6 distinct citers. How cited ↗
discussed Cited as authority (rule) Dawson v. Schoenberg
N.Y. App. Div. · 2015 · confidence medium
However, in a legal malpractice action such as this one, arising from representation in a criminal matter, the “plaintiff must have at least a colorable claim of actual innocence” (Dombrowski v Bulson, 19 NY3d 347, 351 [2012]), and the plaintiff ultimately bears the unique burden to plead and prove that his or her “conviction was due to the attorney’s actions alone and not due to some consequence of his [or her] guilt” (Britt v Legal Aid Socy., 95 NY2d 443, 447 [2000]; see Dombrowski v Bulson, 19 NY3d at 350-351 ; Cummings v Donovan, 36 AD3d 648, 648 [2007]). “‘To succeed on a mo…
cited Cited as authority (rule) Buczek v. Dell & Little, LLP
N.Y. App. Div. · 2015 · confidence medium
Haspel, PLLC, 102 AD3d 955, 956 [2013]; Lever v Roesch, 101 AD3d 954, 955 [2012]; Verdi v Jacoby & Meyers, LLP, 92 AD3d 771, 772 [2012]).
discussed Cited as authority (rule) Bivona v. Danna & Associates, P.C. (2×)
N.Y. App. Div. · 2014 · confidence medium
Ordered that the order is affirmed, without costs or disbursements. “ ‘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’ ” (Lever v Roesch, *960 101 AD3d 954 , 955 [2012], quoting Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; see Lovino, Inc. v Lavallee Law Offs., 96 AD3d 9…
discussed Cited as authority (rule) Blanco v. Polanco
N.Y. App. Div. · 2014 · confidence medium
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 [2007], quoting McCoy v Feinman, 99 NY2d 295, 301 [2002]). “ ‘To succeed on a motion for summary judgment, the defendant in a legal malpractice action must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements’ ” (Lever v Roesch, 101 AD3d 954, 955 [2012], quoting Ver…
discussed Cited as authority (rule) Blanco v. Polanco
N.Y. App. Div. · 2014 · confidence medium
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 [2007], quoting McCoy v Feinman, 99 NY2d 295, 301 [2002]). “ ‘To succeed on a motion for summary judgment, the defendant in a legal malpractice action must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements’ ” (Lever v Roesch, 101 AD3d 954, 955 [2012], quoting Ver…
discussed Cited "see" Rojas v. Paine
N.Y. App. Div. · 2015 · signal: see · confidence high
“To succeed on a motion for summary judgment dismissing the complaint in a legal malpractice action, the defendant must present evidence in admissible form establishing that the plaintiff is unable to prove at least one essential element of his or her cause of action alleging legal malpractice” (Scartozzi v Potruch, 72 AD3d 787, 789-790 [2010]; see Lever v Roesch, 101 AD3d 954, 955 [2012]).
Retrieving the full opinion text from the archive…
Mary Ellen Lever
v.
John Thomas Roesch
Appellate Division of the Supreme Court of the State of New York.
Dec 19, 2012.
101 A.D.3d 954
Cited by 6 opinions  |  Published

The plaintiff allegedly sustained personal injuries when she tripped and fell over a hole in the parking lot of a shopping center. She retained the defendants to commence a personal[*955] injury action on her behalf against Breslin Realty Development Corp. (hereinafter Breslin), the owner of the property where she allegedly fell. Thereafter, the Supreme Court granted Breslin’s motion for summary judgment and dismissed the underlying action. Specifically, the Supreme Court found that, in opposition to Breslin’s prima facie showing of entitlement to judgment as a matter of law, the plaintiff failed to raise a triable issue of fact as to whether Breslin either created or had actual or constructive notice of the alleged defect. The Supreme Court denied the plaintiffs motion for leave to renew and reargue her opposition to Breslin’s motion.

The plaintiff subsequently commenced the instant action to recover damages for legal malpractice, alleging, inter alia, that the defendants failed to timely locate potential notice witnesses and to properly oppose Breslin’s motion for summary judgment, which resulted in the dismissal of the underlying action. The defendants moved for summary judgment dismissing the complaint in the instant action, and the Supreme Court granted their motion.

“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 [2007] [internal quotation marks omitted]; see Lovino, Inc. v Lavallee Law Offs., 96 AD3d 910, 911-912 [2012]; Verdi v Jacoby & Meyers, LLP, 92 AD3d 771, 772 [2012]). “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; see Barbieri v Fishoff, 98 AD3d 703 [2012]; Board of Mgrs. of Bay Club v Borah, Goldstein, Schwartz, Altschuler & Nahins, P.C., 97 AD3d 612, 613 [2012]). “To succeed on a motion for summary judgment, the defendant in a legal malpractice action must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements” (Verdi v Jacoby & Meyers, LLP, 92 AD3d at 772 [internal quotation marks omitted]).

Here, the defendants did not establish, prima facie, that the plaintiff will be unable to prove at least one of the elements of legal malpractice, and thus failed to demonstrate their entitlement to judgment as a matter of law (see Affordable Community, Inc. v Simon, 95 AD3d 1047, 1048 [2012]). Triable issues of fact[*956] exist, inter alia, as to whether the defendants were negligent in their representation of the plaintiff in the underlying action. In light of our determination, we need not address the sufficiency of the plaintiff’s opposition papers (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). Rivera, J.P., Balkin, Leventhal and Chambers, JJ., concur.