Legal Memorandum: Appropriateness of Summary Judgment in NY

Issue: Under New York law, is summary judgment appropriate when the defendant shows that the plaintiff is unable to prove at least one essential element of the cause of action?

           Generally a defendant seeking summary judgment bears an initial burden to present admissible evidence showing that the plaintiff’s cause of action lacks merit.  Busino v. Meachem, 270 A.D.2d 606, 704 N.Y.S.2d 690, 693 (3d Dep’t 2000).  But once the defendant makes a prima facie showing in this regard the burden shifts to the plaintiff, the opposing party, to establish an unresolved material issue of fact which can be determined only at trial.  Id.

When, the cause of action is one for legal malpractice, the defendant can satisfy his or her summary judgment burden by making a prima facie showing that the plaintiff is unable to prove at least one of the essential elements of this cause of action.  Shopsin v. Siben & Siben, 268 A.D.2d 578, 702 N.Y.S.2d 610,611 (2d Dep’t 2000).  If the plaintiff fails to dispute this showing with admissible evidence, summary judgment must be granted to the defendant.  Ippolito v. McCormack, Damiani, Lowe & Mellon, 265 A.D.2d 303, 696 N.Y.S.2d 203, 204 (2d Dep’t 1999).

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