Attorney successfully defended an appeal of a Summary Judgment he obtained in a legal malpractice action arising out of the attorney's representation of the client on an appeal arising out of a loan sharking conviction

Attorney successfully defended an appeal of a Summary Judgment he obtained in a legal malpractice action arising out of the attorney's representation of the client on an appeal arising out of a loan sharking conviction. The plaintiff alleged that the attorney deviated from the standard of care of criminal defense attorneys by failing to raise the defense of ineffective assistance of counsel on an application for post-conviction relief. The attorney raised the issue on direct appeal. The Trial Court rejected the plaintiff's argument and, despite an expert report on behalf of plaintiff, dismissed the action. First, the Appellate Division ruled that an expert report did not constitute an Affidavit of Merit. Here, although plaintiff had an expert report, plaintiff did not submit an Affidavit of Merit consistent with the state's statute. Next, the Court ruled that plaintiff cannot resort to "labeling" of their claims as contract claims as opposed to claims for deviation from the standard of care in professional liability actions. The Court ruled that labeling had previously been rejected by the State Supreme Court in such cases. Therefore, a professional liability action requires an Affidavit of Merit no matter how one labels it. Accordingly, the Appellate Division affirmed the Order for Summary Judgment entered by the Trial Court dismissing the legal malpractice action.