| Erdman v Dell |
| 2008 NY Slip Op 02959 [50 AD3d 627] |
| April 1, 2008 |
| Appellate Division, Second Department |
| Thomas E. Erdman et al., Respondents, v Joseph G. Dell etal., Appellants. |
—[*1] Greshin, Ziegler & Amicizia, LLP, Smithtown, N.Y. (Vincent M. Amicizia of counsel), forrespondents.
In an action to recover damages for legal malpractice, the defendants appeal from an order ofthe Supreme Court, Suffolk County (Doyle, J.), dated April 10, 2007, which granted theplaintiffs' motion for summary judgment on the issue of liability.
Ordered that the order is reversed, on the law, with costs, and the plaintiffs' motion forsummary judgment on the issue of liability is denied.
"In an action to recover damages for legal malpractice, a plaintiff must demonstrate that theattorney 'failed to exercise the ordinary reasonable skill and knowledge commonly possessed by amember of the legal profession' and that the attorney's breach of this duty proximately caused[the] plaintiff to sustain actual and ascertainable damages" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438,442 [2007]).
The Supreme Court incorrectly found at this point in the action that the plaintiff Thomas E.Erdman would have succeeded on his cause of action to recover damages pursuant to Labor Law§ 240 (1) but for the defendants' failure to sue the general contractor before the statute oflimitations expired. Issues of fact exist as to whether the scaffold from which Erdman fellprovided proper protection and whether his failure to lock the wheels underneath the scaffoldwas the proximate cause of the accident (see Wiener v Rosmarin, 282 AD2d 449 [2001];Castronovo v Doe, 274 AD2d 442, [*2]443 [2000];Mejia v African M.E. Allen Church, 271 AD2d 583 [2000]; Garieri v BroadwayPlaza, 271 AD2d 569 [2000]). Rivera, J.P., Ritter, Carni and Leventhal, JJ., concur.[See 2007 NY Slip Op 30869(U).]