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Russo v. Feder11/21/2002
sal would have been required unless plaintiff could have shown that those defendants caused the defect. Plausibly, counsel pursued this latter line of reasoning and cannot be faulted for doing so. The putative defect, adduced in plaintiff's and McMahon's own deposition testimony, is that the edge of the carpet was rolled back a couple of feet and resulted in a three- or four-inch buckling. Apparently, this theory of causation was sharply undermined by contemporaneous photographic evidence. Again, it must be shown that the personal injury defendants caused this defect. We cannot fault counsel for failing to produce evidence that may never have existed.
Counsel did submit an expert's affidavit that sought to show (*7)that the carpet was improperly secured -- a moot point if it could not be shown, preliminary, that the carpet caused the injury . The argument is basically that the expert's affidavit was insufficiently detailed. However, under these factual circumstances, the absence of details in the affidavit do not establish the negligence and causation, required for the malpractice claim if the result would not have been different even with the inclusion of such details (23 Realty Associates v Zack, 255 AD2d 111). In any event, the Second Department, as noted by Justice Solomon, did not even address the engineer's affidavit, underscoring its marginal effect on the summary judgment motion.
Plaintiff, though, relies on the affidavit of another attorney, a supposed expert in this regard, to establish why counsel's strategy and performance were incompetent. Essentially, the affiant-attorney was offering a legal opinion as to what performance or absence thereof constitutes legal malpractice. But making those determinations is the function of a court. As we recently pointed out in another case, "expert witnesses should not . . . offer opinion as to the legal obligations of parties . . . ; that is an issue to be determined by the trial court. Expert opinion as to a legal conclusion is impermissible" (Colon v Rent-A-Center, Inc., 276 AD2d 58, 61). An expert may not be utilized to offer opinion as to the legal standards which he believes should have governed a party's conduct (Marx & Co. v The Diners' Club, 550 F 2d 505, 509, cert denied 434 US 861). We do not rely on an attorney's affidavits to tell us what constitutes malpractice. Moreover, the affidavit offered here raises an additional concern. It is tinged with the sense that since the affiant would have done things differently, therefore the attorney being challenged was incompetent. Such a contest of strategies is easily reduced to a malpractice standard that impermissibly compares the defendant-attorney's choice of strategies with the afterthoughts later offered by plaintiff's now-favored attorney, for whom bias is a necessary concern, rather than measuring counsel's performance against the much more objective standard of the profession's commonly prevailing practices. (*8) Accordingly, for these several reasons, the order of the Supreme Court, New York County (Jane Solomon, J.), entered May 9, 2001, which granted defendants' motion for summary judgment dismissing the complaint and denied plaintiff's cross motion for partial summary judgment, should be affirmed, without costs.
All concur.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
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