| Wray v Mallilo & Grossman |
| 2008 NY Slip Op 06557 [54 AD3d 328] |
| August 5, 2008 |
| Appellate Division, Second Department |
| Terrance Wray, Appellant, v Mallilo & Grossman,Respondent. |
—[*1] Steinberg & Cavaliere, LLP, White Plains, N.Y. (Ronald W. Weiner of counsel), forrespondent.
In an action to recover damages for legal malpractice, the plaintiff appeals from an order ofthe Supreme Court, Queens County (Kitzes, J.), dated June 12, 2007, which granted thedefendant's motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
To prevail in an action to recover damages for legal malpractice, a plaintiff must establishthat the defendant did not "exercise the ordinary reasonable skill and knowledge commonlypossessed by a member of the legal profession, and that the attorney's breach of that dutyproximately caused the plaintiff to sustain actual and ascertainable damages" (Carrasco v Pena & Kahn, 48 AD3d395, 396 [2008]; see Rudolf vShayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Erdman v Dell, 50 AD3d 627[2008]). To establish causation, a plaintiff must show that he or she would have prevailed in theunderlying action or would not have incurred any damages, but for the attorney's negligence(see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442). A defendantmoving for summary judgment in a legal malpractice action must, therefore, establish prima faciethat the plaintiff cannot prove at least one of the essential elements of the malpractice claim (see Levy v Greenberg, 19 AD3d462 [2005]).
Here, the defendant met its prima facie burden of establishing entitlement to judgment as amatter of law by demonstrating that the plaintiff would be unable to prove that, but for anynegligence on its part, he would have prevailed in the underlying action to recover damagesagainst [*2]the premises owner under the Labor Law § 240(1) and § 241 (6) causes of action. In opposition, the plaintiff failed to raise a triable issueof fact. In the underlying action, the Supreme Court determined that the facts and circumstancesgiving rise to the plaintiff's accident were insufficient as a matter of law to sustain a claim underthe Labor Law § 240 (1) or § 241 (6). Accordingly, the plaintiff is collaterallyestopped from relitigating those claims in the context of this legal malpractice action (seeSutton v Ezra, 224 AD2d 517 [1996]; Geraci v Bauman, Greene & Kunkis, 171AD2d 454, 455 [1991]).
The plaintiff's remaining contentions either are not properly before us, as they are raised forthe first time on appeal, or are without merit. Fisher, J.P., Ritter, Florio and Carni, JJ., concur.