Appellate division held, nature and scope of any attorney’s professional responsibilities may be outside ken and experience of average lay juror; however, no expert needed when defendant attorney testifies to specific failure in underlying representation.

The plaintiff’s complaint was dismissed on a motion based upon her failure to produce expert opinion regarding the standard of professional care applicable to the defendants in the course of their representation of plaintiff in the purchase of her home. The underlying court rejected the plaintiff’s invocation of the common knowledge doctrine as a substitute for expert testimony, finding that a reasonable lay person was not capable of determining what an attorney’s responsibilities are in connection with representing a buyer of residential property. The appellate division reversed, finding that the defendant’s deposition testimony conceding that he had to ensure that the seller delivered prior to closing of title a Certificate of Continued Occupancy (CCO), but that at the closing the seller’s attorney provided him with a Certificate of Occupancy (CO). The defendant testified at deposition that he accepted the CO under the mistaken belief that it was, in fact, a COO. This testimony supported proximate cause and resulting damages and no expert was needed.

Case Law Alert - 1st Quarter 2013