| Napolitano v Markotsis & Lieberman |
| 2008 NY Slip Op 02980 [50 AD3d 657] |
| April 1, 2008 |
| Appellate Division, Second Department |
| John Napolitano, Appellant, v Markotsis & Lieberman etal., Respondents. |
—[*1] L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Peter D. Rigelhaupt ofcounsel), for respondents.
In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals from ajudgment of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered April 16, 2007, which,upon an order of the same court dated April 4, 2007, granting the defendants' motion forsummary judgment dismissing the complaint, dismissed the complaint.
Ordered that the judgment is affirmed, with costs.
In order to prevail in an action to recover damages for legal malpractice, a plaintiff mustestablish that the defendant attorney failed to exercise the level of skill and knowledge commonlypossessed by a member of the legal profession, and that the failure proximately caused theplaintiff to sustain actual and ascertainable damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d438, 442 [2007]; Olaiya vGolden, 45 AD3d 823 [2007]). To establish causation, the plaintiff must show that, butfor the attorney's negligence, he or she would have prevailed in the underlying action (seeRudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442; Carrasco v Pena &Kahn, 43 AD3d 395 [2008]).
On their motion for summary judgment, the defendants made a prima facie showing that theplaintiff would be unable to prove at trial that, but for their alleged malpractice, he would haveovercome the affirmative defense of "unclean hands" and prevailed in the underlying action. Inopposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court[*2]properly granted the defendants' motion for summaryjudgment dismissing the complaint (seeAsher v Shlimbaum, 45 AD3d 791 [2007]). Fisher, J.P., Ritter, Dillon and McCarthy,JJ., concur.