FKB’s Andrew S. Kowlowitz and Florence N. Lishansky won summary judgment of a legal malpractice action, wherein the plaintiffs sought $1.5 million. The plaintiffs, owners and operators of a Brooklyn diner, retained FKB’s client, the defendant law firm (“Firm”), to defend a claim brought by a contractor and lender to recover a balance due under a promissory note. The Plaintiffs lost arbitration, were ordered to pay the contractor and lender, and a result, lost their diner.

Thereafter, Plaintiffs sued the Firm alleging that the election to proceed to arbitration was inappropriate and amounted to legal malpractice, and that the Firm failed to obtain and introduce necessary testimony and evidence during the underling arbitration proceeding, resulting in the loss at arbitration.

Following the completion of discovery, FKB filed a motion for summary judgment. Among other things, FKB argued that the Firm was entitled to summary judgment as Plaintiffs could not prove that they would have been more successful in the underlying action “but for” the Firm’s alleged acts or omissions. FKB further argued that the strategy to proceed to arbitration was a well-reasoned decision, and Plaintiffs’ claims arising from same amounted to after-the-fact “second guessing” of the Firm’s professional judgment. Further, Plaintiffs consented to proceeding to arbitration in writing. FKB also argued that Plaintiffs could not prove that additional evidence or the testimony of parties at arbitration would have altered the outcome. Indeed, Plaintiffs conceded under examination during their depositions that they were unaware of additional evidence or testimony that would altered the outcome of the underlying arbitration. For this reason, FKB argued that Plaintiffs’ assertions were conclusory, speculative and unsupported by record evidence.

Hon. Edgar G. Walker (J.S.C., Kings County) agreed with FKB’s arguments and granted summary judgment dismissing Plaintiffs’ Complaint. In a well-reasoned decision, Justice Walker held that the record established that plaintiffs were “well aware of their options and the next steps in the litigation process if they decided not to pursue arbitration [and] as such, [plaintiffs] decision to pursue arbitration as a reasonable course of action, though unsuccessful, is insufficient establish a legal malpractice cause of action.” Justice Walker further found that “plaintiffs allegations with respect to whether defendants exercised the degree, of care, skill and diligence commonly possessed by a member of the legal community amounts to nothing more than dissatisfaction with [the firm’s] strategic choices and thus, as a matter of law, do not support a malpractice claim.”

If you have any questions about the decision, please contact Andrew S. Kowlowitz or Florence N. Lishansky.