| Eisenberger v Septimus |
| 2007 NY Slip Op 08180 [44 AD3d 994] |
| October 30, 2007 |
| Appellate Division, Second Department |
| Robert Eisenberger et al., Respondents-Appellants, v JudahI. Septimus, Appellant-Respondent. |
—[*1] Sonkin, Fifer & Gershon, New York, N.Y. (Howard Fifer of counsel), forrespondents-appellants.
In an action to recover damages for legal malpractice, the defendant appeals, as limited by hisbrief, from so much of an order of the Supreme Court, Kings County (Bayne, J.), dated October10, 2006, as denied his motion for summary judgment dismissing the complaint, and theplaintiffs cross-appeal, as limited by their brief, from so much of the same order as denied theirmotion for summary judgment on the issue of liability.
Ordered that the order is affirmed insofar as appealed and cross-appealed from, without costsor disbursements.
"In an action to recover damages for legal malpractice, a plaintiff must demonstrate that theattorney 'failed to exercise the ordinary reasonable skill and knowledge commonly possessed by amember of the legal profession' and that the attorney's breach of this duty proximately causedplaintiff to sustain actual and ascertainable damages . . . To establish causation, aplaintiff must show that he or she would have prevailed in the underlying action or would nothave incurred any damages, but for the lawyer's negligence" (Rudolf v Shayne, Dachs,Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007] [citations omitted]). "For a defendant in alegal malpractice action to succeed on a motion for summary judgment, evidence must besubmitted in admissible form establishing that the plaintiff is unable to prove at least one of [the]essential elements [of legal malpractice]" (Shopsin v Siben & Siben, 268 AD2d 578[2000]; see Ippolito v McCormack, Damiani, Lowe & Mellon, 265 AD2d 303 [1999]).
The defendant failed to prove his prima facie entitlement to judgment as a matter of lawsince he did not demonstrate that the plaintiffs are unable to prove one of the essential elementsof their malpractice claim (see Shopsin v Siben & Siben, 268 AD2d 578 [2000]).Similarly, the plaintiffs were not entitled to summary judgment since questions of fact existregarding the malpractice claim (see Avery v Sirlin, 26 AD3d 451 [2006]; Maddux vSchur, 16 AD3d 873 [2005]).
Accordingly, the Supreme Court properly denied the respective motions for summaryjudgment (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). Spolzino, J.P., Santucci,Angiolillo and Dickerson, JJ., concur.