| Velie v Ellis Law, P.C. |
| 2008 NY Slip Op 01533 [48 AD3d 674] |
| February 19, 2008 |
| Appellate Division, Second Department |
| Kathleen Velie et al., Appellants, v Ellis Law, P.C., et al.,Respondents. |
—[*1] Steinberg & Cavaliere, LLP, White Plains, N.Y. (Ronald W. Weiner of counsel), forrespondents.
In an action to recover damages for legal malpractice, the plaintiffs appeal from an order ofthe Supreme Court, Dutchess County (Pagones, J.), dated October 20, 2006, which granted thedefendants' motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is denied.
The plaintiff Kathleen Velie allegedly was injured when she slipped and fell on ice in theparking lot at her place of employment. The plaintiffs contend, inter alia, that the defendants,their former attorneys, committed legal malpractice by failing to timely commence a negligenceaction against the snow removal contractors.
To establish a cause of action to recover damages for legal malpractice, a plaintiff mustprove that the defendant attorney failed to exercise "the ordinary reasonable skill and knowledgecommonly possessed by a member of the legal community, and that the attorney's breach of thisduty proximately caused plaintiff to sustain actual and ascertainable damages" (Rudolf v Shayne, Dachs, Stanisci, Corker& Sauer, 8 NY3d 438, 442 [2007] [internal quotation marks omitted]; see Simmons v Edelstein, 32 AD3d464 [2006]; Tortura v SullivanPapain Block McGrath & Cannavo, P.C., 21 AD3d 1082 [2005]). To succeed on amotion for summary judgment, the defendant in a legal malpractice action must present evidencein admissible form establishing that the plaintiff is unable to prove at least one of these essentialelements (see [*2]Town of N. Hempstead v Winston & Strawn, LLP, 28 AD3d746 [2006]; Linder v Dranoff,22 AD3d 812 [2005]; Dimondv Kazmierczuk & McGrath, 15 AD3d 526 [2005]; Ostriker v Taylor, Atkins &Ostrow, 258 AD2d 572 [1999]).
The Supreme Court erroneously granted the defendants' motion for summary judgmentdismissing the complaint. The defendants failed to sustain their prima facie burden ofdemonstrating that the plaintiffs were unable to prove one of the essential elements of theirmalpractice cause of action (see Suydam v O'Neill, 276 AD2d 549 [2000]; Shopsin vSiben & Siben, 268 AD2d 578 [2000]). Spolzino, J.P., Ritter, Miller and Dickerson, JJ.,concur.