| Adamski v Lama |
| 2008 NY Slip Op 09308 [56 AD3d 1071] |
| November 26, 2008 |
| Appellate Division, Third Department |
| A.J. Adamski, Appellant, v Luciano L. Lama et al.,Respondents. |
—[*1] Costello, Cooney & Fearon, P.L.L.C., Syracuse (Scott W. Bush of counsel), forrespondents.
Mercure, J.P. Appeal from an order of the Supreme Court (Garry, J.), entered July 5, 2007 inTompkins County, which, among other things, partially granted defendants' motion for partialsummary judgment dismissing the complaint.
Plaintiff has commenced a series of lawsuits against his former employer, nonparty SchuylerHospital, as well as both his former counsel and counsel for various prior defendants. In thisaction, his fifth lawsuit, plaintiff asserts a variety of claims, including legal malpractice andbreach of fiduciary duty, against defendants, his counsel in the third and fourth lawsuits, in whichhe claimed that the various defendants therein had violated the settlement agreement betweenplaintiff and Schuyler Hospital that resolved plaintiff's first action.[FN*] Upon this appeal, [*2]plaintiff challenges an order of SupremeCourt granting defendants' motion for partial summary judgment, dismissing all causes of actionexcept plaintiff's conversion claim and granting defendants' motion to strike plaintiff's demandfor punitive damages.
We affirm. " 'To recover damages for legal malpractice, a plaintiff must demonstrate that theattorney was negligent, that the negligence was a proximate cause of the loss sustained and thatplaintiff suffered actual and ascertainable damages' " (Ehlinger v Ruberti, Girvin &Ferlazzo, 304 AD2d 925, 926 [2003], quoting Busino v Meachem, 270 AD2d 606,609 [2000] [citations omitted]). Here, defendants demonstrated prima facie entitlement tosummary judgment by submitting proof in admissible form that they exercised adequate care,skill and diligence in discharging their obligations to plaintiff; that the lack of merit to plaintiff'sclaims, rather than any alleged negligence of defendants, caused plaintiff's failure to prevail inthe third and fourth actions; and that any damages sustained by plaintiff resulted solely from thesettlement agreement signed prior to his representation by defendants. Inasmuch as plaintiff'ssubmissions in response failed to raise any issues of fact regarding negligence, proximate causeor damages, Supreme Court properly dismissed plaintiff's legal malpractice cause of action (see Guiles v Simser, 35 AD3d1054, 1055-1056 [2006]; Antokol& Coffin v Myers, 30 AD3d 843, 845-846 [2006]; Lichtenstein v Barenbaum, 23 AD3d 440, 440-441 [2005]; Brodeur v Hayes, 18 AD3d 979,980-981 [2005], lv dismissed and denied 5 NY3d 871 [2005]). Finally, plaintiff's breachof fiduciary duty claims are, essentially, claims of legal malpractice and, thus, they fail for thereasons detailed above (see Guiles v Simser, 35 AD3d at 1055; Weil, Gotshal & Manges, LLP v FashionBoutique of Short Hills, Inc., 10 AD3d 267, 271-272 [2004]).
Plaintiff's remaining claims have been considered and found to be lacking in merit.
Spain, Rose, Kane and Stein, JJ., concur. Ordered that the order is affirmed, without costs.
Footnote *: This Court previously affirmedan order striking the complaint in plaintiff's second lawsuit, a slip and fall action against SchuylerHospital, due to plaintiff's noncompliance with discovery orders (Adamski v Schuyler Hosp., Inc., 36AD3d 1198 [2007]). Currently pending before us is plaintiff's appeal from the dismissal ofhis complaint in his sixth action, in which he asserts, among other things, a libel claim againsttrial counsel for the defendants in this action (Adamski v Romano-Schulman, 56 AD3d— [2008] [decided herewith]).