| Carrasco v Pena & Kahn |
| 2008 NY Slip Op 01092 [48 AD3d 395] |
| February 5, 2008 |
| Appellate Division, Second Department |
| Lorenzo Carrasco, Appellant, v Pena & Kahn et al.,Respondents, et al., Defendants. |
—[*1] Mintzer Sarowitz Zeris Ledva & Meyers, Hicksville, N.Y. (Bradley J. Levien of counsel), forrespondents.
In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals, aslimited by his brief, from so much of an order of the Supreme Court, Queens County (Agate, J.),dated August 15, 2006, as granted the motion of the defendants Pena & Kahn, Steven L. Kahn,and Jesus Pena for summary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order is affirmed insofar as appealed from, with costs.
To prevail in an action to recover damages for legal malpractice, a plaintiff must establishthat the defendant attorney failed to exercise the ordinary reasonable skill and knowledgecommonly possessed by a member of the legal profession, and that the attorney's breach of thatduty proximately caused the plaintiff to sustain actual and ascertainable damages (see Rudolf v Shayne, Dachs, Stanisci,Corker & Sauer, 8 NY3d 438, 442 [2007]). To establish causation, a plaintiff must showthat he or she would have prevailed in the underlying action or would not have incurred anydamages, but for the attorney's negligence (id. at 442). To make a prima facie showing ona motion for summary judgment, the attorney must present admissible evidence that the plaintiffcannot prove at least one of the essential elements of a legal malpractice claim (see Levy v Greenberg, 19 AD3d462 [2005]; Crawford v McBride, 303 AD2d 442 [2003]; Shopsin v Siben &Siben, 268 AD2d 578 [2000]; Ippolito v McCormack, Damiani, Lowe & Mellon,265 AD2d 303 [1999]).[*2]
Here, on their motion, the defendants Pena & Kahn,Steven L. Kahn, and Jesus Pena (hereinafter the defendants) demonstrated their entitlement tojudgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]),by establishing, prima facie, that their conduct was not a proximate cause of any loss to theplaintiff (see Goldberg v Lenihan,38 AD3d 598, 599 [2007]). Since, in opposition, the plaintiff failed to raise a triableissue of fact (see Alvarez v Prospect Hosp., 68 NY2d at 324), the Supreme Courtcorrectly granted the defendants' motion (see Goldberg v Lenihan, 38 AD3d at 599).Fisher, J.P., Lifson, Covello and McCarthy, JJ., concur.