| Rupert v Gates & Adams, P.C. |
| 2008 NY Slip Op 01192 [48 AD3d 1221] |
| February 8, 2008 |
| Appellate Division, Fourth Department |
| Philip D. Rupert, Jr., Appellant, v Gates & Adams, P.C., et al.,Respondents. (Appeal No. 1.) |
—[*1] Hiscock & Barclay, LLP, Rochester (Robert M. Shaddock of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Monroe County (Stephen R. Sirkin, A.J.),entered September 5, 2006 in a legal malpractice action. The order denied the petition fordeclaratory relief and summary judgment and granted the cross motion of defendants forsummary judgment dismissing the complaint.
It is hereby ordered that the order so appealed from is unanimously modified on the law bydenying the cross motion and reinstating the complaint and as modified the order is affirmedwithout costs.
Memorandum: Plaintiff commenced this legal malpractice action alleging, inter alia, thatdefendants were negligent in representing him during the trial of a matrimonial action and on asubsequent appeal. Contrary to the contention of plaintiff, Supreme Court properly denied his"petition" seeking, inter alia, summary judgment on the complaint (see generally Zuckermanv City of New York, 49 NY2d 557, 562 [1980]). Even assuming, arguendo, that plaintiff methis initial burden by submitting evidence that defendants failed to obtain plaintiff's informedconsent before pursuing an unsuccessful appellate strategy, we conclude that defendants raised atriable issue of fact by submitting evidence that they obtained plaintiff's informed consent withrespect to their appellate strategy (see generally id.).
We agree with plaintiff, however, that the court erred in granting defendants' cross motionseeking summary judgment dismissing the complaint, and we therefore modify the orderaccordingly. " 'In order to establish their entitlement to judgment as a matter of law, defendantshad to present evidence in admissible form establishing that [plaintiff is] unable to prove at leastone [of the] necessary element[s] of a legal malpractice action' . . . , i.e., 'that[defendants] failed to exercise that degree of care, skill, and diligence commonly possessed andexercised by members of the legal community, that [their] negligence was a proximate cause ofthe loss sustained by [plaintiff], and that [plaintiff] incurred damages as a direct result of[defendants'] actions' " (Pignataro vWelsh, 38 AD3d 1320 [2007], lv denied 9 NY3d 849 [2007]; see Robbins vHarris Beach & Wilcox, 291 AD2d 797, 798 [2002]). We conclude that defendants failed tomeet their [*2]initial burden because they failed to address intheir moving papers the allegations of plaintiff that defendants were negligent in representinghim during the trial of the matrimonial action. Defendants thus failed to establish that plaintiffwould be unable to prove at least one of the elements of legal malpractice concerning the allegednegligence during trial (see Robbins, 291 AD2d at 798; see generally Zuckerman,49 NY2d at 562). Present—Scudder, P.J., Centra, Fahey, Green and Pine, JJ.