| Asher v Shlimbaum |
| 2007 NY Slip Op 09351 [45 AD3d 791] |
| November 27, 2007 |
| Appellate Division, Second Department |
| Daniel W. Asher, Appellant, v Lark J. Shlimbaum et al.,Respondents. |
—[*1] Babchik & Young, LLP, White Plains, N.Y. (Jack Babchik, Matthew J. Rosen, and JordanSklar of counsel), for respondents.
In an action to recover damages for legal malpractice, the plaintiff appeals from an order ofthe Supreme Court, Suffolk County (Weber, J.), dated May 3, 2006, which granted thedefendants' motion to dismiss the complaint pursuant to CPLR 3211.
Ordered that the order is affirmed, with costs.
The Supreme Court properly granted the defendants' motion to dismiss the complaintalleging legal malpractice. The plaintiff's underlying action was commenced to enforce analleged oral contract between himself and his sister and brother-in-law to convey certain realproperty from them to him. By order dated September 30, 2004, the Supreme Court found thatthe plaintiff's actions in connection with the acquisition and maintenance of the property were notunequivocally referable to the alleged contract (see General Obligations Law §5-703 [4]), and therefore the alleged contract was barred by the statute of frauds and wasunenforceable (see General Obligations Law § 5-703 [3]). This was sufficient toshow that the plaintiff could not establish that he would have succeeded in the underlying actionbut for the defendants' failure to plead other legal theories in connection with the underlyingaction (see Leder v Spiegel, 9 NY3d836 [2007]). Accordingly, the Supreme Court properly granted the defendants' motion todismiss the complaint (see L&S Motors, Inc. v Broadview Networks, Inc., 25 AD3d 767[2006]; Dann v King Assoc., 303 AD2d 539 [2003]; Roth v Goldman, 254 AD2d405 [1998]). Schmidt, J.P., Rivera, Krausman and Florio, JJ., concur.