| Lamanna v Pearson & Shapiro |
| 2007 NY Slip Op 06956 [43 AD3d 1111] |
| September 25, 2007 |
| Appellate Division, Second Department |
| Elizabeth Lamanna, Respondent, v Pearson & Shapiro etal., Appellants. |
—[*1] Daniel L. Abrams, PLLC, New York, N.Y., for respondent.
In an action to recover damages for legal malpractice, the defendants appeal from an order ofthe Supreme Court, Westchester County (Colabella, J.), entered September 19, 2006, whichdenied their motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
To establish a cause of action to recover damages for legal malpractice, a plaintiff mustprove that the attorney failed to exercise that degree of care, skill, and diligence commonlypossessed and exercised by an ordinary member of the legal community, and that the attorney'sbreach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages(see Rudolf v Shayne, Dachs, Stanisci,Corker & Sauer, 8 NY3d 438, 442 [2007]; McCoy v Feinman, 99 NY2d 295,301-302 [2002]; Cohen v Wallace &Minchenberg, 39 AD3d 691 [2007]; Goldberg v Lenihan, 38 AD3d 598 [2007]; Shopsin v Siben &Siben, 268 AD2d 578 [2000]). "To establish causation, a plaintiff must show that he or shewould have prevailed in the underlying action or would not have incurred any damages, but forthe lawyer's negligence" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at442).
In order for a defendant in a legal malpractice action to successfully move for summaryjudgment dismissing the complaint, the defendant must present evidence in admissible formestablishing that the plaintiff is unable to prove at least one essential element (see Goldberg vLenihan, 38 AD3d at 598; Fasanellav Levy, 27 AD3d 616 [2006]). The plaintiff alleges, inter alia, that [*2]the defendants failed to take an administrative appeal from anadverse determination of the Equal Employment Opportunity Commission (hereinafter theEEOC) made in a proceeding they commenced on her behalf and that but for their negligence,she would have prevailed on her administrative appeal or would have been successful in pursuingher discrimination claims in federal court. In support of their motion, the defendants failed toproffer sufficient evidence to establish, prima facie, that the plaintiff would not have beensuccessful in an appeal from the EEOC determination or that they had properly preserved herright to seek review of her claims in federal court.
The defendants' failure to make a prima facie showing required the denial of the motion,regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med.Ctr., 64 NY2d 851, 853 [1985]). Accordingly, the motion for summary judgment wasproperly denied (see Suydam v O'Neill, 276 AD2d 549, 550 [2000]). Crane, J.P.,Goldstein, Skelos and Carni, JJ., concur.