| Orchard Motorcycle Distribs., Inc. v Morrison Cohen Singer &Weinstein, LLP |
| 2008 NY Slip Op 01996 [49 AD3d 292] |
| March 6, 2008 |
| Appellate Division, First Department |
| Orchard Motorcycle Distributors, Inc., et al.,Appellants, v Morrison Cohen Singer & Weinstein, LLP,Respondent. |
—[*1] Lewis Brisbois Bisgaard & Smith LLP, New York City (Peter T. Shapiro of counsel), forrespondent.
Order, Supreme Court, New York County (Doris Ling-Cohan, J.), entered July 18, 2007,which, to the extent appealed from as limited by the briefs, granted defendant's motion forsummary judgment dismissing the amended complaint, unanimously affirmed, without costs.
The expert's affidavit was enough to sustain defendant's prima facie burden on the motion forsummary dismissal of the legal malpractice claim, shifting the burden to plaintiffs (see Tanelv Kreitzer & Vogelman, 293 AD2d 420, 421-422 [2002]). In opposition, plaintiffs failed tosubmit their own expert affidavit delineating the appropriate standard of professional care andskill to which defendant was required to adhere under the circumstances, which involved mattersarising out of foreclosure actions, complex loan arrangements and bankruptcy proceedings thatordinary jurors could not evaluate based on their own knowledge and experience. There was noprima facie case for legal malpractice (Merlin Biomed Asset Mgt., LLC v Wolf Block Schorr & Solis-CohenLLP, 23 AD3d 243 [2005]; Schadoff v Russ, 278 AD2d 222 [2000]). The recordfurther demonstrates that the corporate plaintiffs' dire financial situation was brought on byfactors independent of defendant's professional representation, rendering the claim that defendantproximately caused plaintiffs' business failure speculative (Brooks v Lewin, 21 AD3d 731 [2005], lv denied 6 NY3d713 [2006]).
These deficiencies were not cured by the affidavit of plaintiffs' principal, which failed toestablish that but for defendant's alleged malpractice, the corporate plaintiffs would havesuccessfully reorganized in chapter 11 proceedings (Phillips-Smith Specialty Retail Group IIv Parker Chapin Flattau & Klimpl, 265 AD2d 208 [1999], lv denied 94 NY2d 759[2000]; Zarin v Reid & Priest, 184 AD2d 385 [1992]). Even if this Court were toconsider plaintiff's "failure to advise" claim, an attorney's selection of one among severalreasonable courses of action does not constitute malpractice (Rosner v Paley, 65 NY2d736 [1985]).
The Bankruptcy Court's orders approving defendant's legal fees and expenses establisheddefendant's entitlement thereto (IzkoSportswear Co., Inc. v Flaum, 25 AD3d 534 [2006]; Siegel v Werner & Zaroff,270 AD2d 119 [2000]). Coupled with defendant's admission to an instance of overchargingplaintiffs for services and agreement to repay same, this warranted summary dismissal of theconversion claim.[*2]
Defendant's right to fees and expenses having beenestablished, it cannot be argued that it was unjustifiably enriched. Nor is there any basis in therecord to warrant rescission of the retainer agreement between plaintiffs and defendant.
We have considered plaintiffs' other arguments and find them without merit.Concur—Mazzarelli, J.P., Saxe, Gonzalez and Acosta, JJ. [See 2007 NY Slip Op32152(U).]