| Pedro v Walker |
| 2007 NY Slip Op 10128 [46 AD3d 789] |
| December 18, 2007 |
| Appellate Division, Second Department |
| Kerlene Pedro, Appellant-Respondent, v Glenroy Walker etal., Defendants, and Joshua N. Bleichman, Respondent-Appellant. |
—[*1] Steinberg & Cavaliere, LLP, White Plains, N.Y. (Ronald W. Weiner of counsel), forrespondent-appellant.
In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals from somuch of an order of the Supreme Court, Westchester County (Nastasi, J.), entered November 29,2005, as granted that branch of the motion of the defendant Joshua N. Bleichman which was forsummary judgment dismissing the complaint insofar as asserted against him, and the defendantJoshua N. Bleichman cross-appeals from so much of the same order as denied that branch of hismotion which was for the imposition of sanctions against the plaintiff and/or her counsel.
Ordered that the order is reversed insofar as appealed from, on the law, without costs ordisbursements, and that branch of the motion of the defendant Joshua N. Bleichman which wasfor summary judgment dismissing the complaint insofar as asserted against him is denied; and itis further,
Ordered that the order is affirmed insofar as cross-appealed from, without costs ordisbursements.
To prevail on a claim of legal malpractice, "a plaintiff must demonstrate that the attorney'failed to exercise the ordinary skill and knowledge commonly possessed by a member of thelegal profession' and that the attorney's breach of this duty proximately caused [the] plaintiff tosustain actual and ascertainable damages" (Rudolf v Shayne, Dachs, Stanisci, Corker &Sauer, 8 [*2]NY3d 438, 442 [2007], quoting McCoy vFeinman, 99 NY2d 295, 301-302 [2002]; see Barnett v Schwartz, 47 AD3d197 [2007]; Porello v Longworth, 21 AD3d 541 [2005]; Dimond v Kazmierczuk & McGrath,15 AD3d 526, 527 [2005]; Ippolito v McCormack, Damiani, Lowe & Mellon,265 AD2d 303 [1999]). For a defendant in a legal malpractice case to prevail on a motion forsummary judgment, he or she must present evidence in admissible form establishing that theplaintiff is unable to prove at least one of the above-cited essential elements (see Ippolito vMcCormack, Damiani, Lowe & Mellon, 265 AD2d 303 [1999]; Ostriker v Taylor, Atkins& Ostrow, 258 AD2d 572 [1999]).
Here, the Supreme Court erred in granting that branch of the motion of the defendant JoshuaN. Bleichman which was for summary judgment dismissing the complaint insofar as assertedagainst him. Bleichman failed to make a prima facie showing of entitlement to judgment as amatter of law since he failed to show that the plaintiff was unable to prove at least one of theessential elements of her legal malpractice cause of action. Thus, we need not address thesufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d851, 853 [1985]).
Bleichman's remaining contentions are without merit. Spolzino, J.P., Krausman, Goldsteinand Dickerson, JJ., concur.