| Vlahakis v Mendelson & Assoc. |
| 2008 NY Slip Op 06703 [54 AD3d 670] |
| September 2, 2008 |
| Appellate Division, Second Department |
| John Vlahakis, Appellant, v Mendelson & Associates et al.,Respondents. |
—[*1] L'Abbate, Balkan, Colavita & Contini, LLP, Garden City (Peter D. Rigelhaupt of counsel),for respondents.
In an action to recover damages for legal malpractice, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (Martin J.), dated June 7, 2007, which granted thedefendants' motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
The plaintiff alleged that he sustained damages because the defendants, who were hisattorneys in a bankruptcy proceeding, advised him that he would not have to pay the arrearswhich he owed on the mortgage on his residence. The plaintiff further alleged that this adviceconstituted legal malpractice, and that as a result, he was required to pay interest and late chargeson the arrears, as well as attorneys' fees.
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 theplaintiff to sustain actual and ascertainable damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d438, 442 [2007]). Here, the defendants met their initial burden on their motion for summaryjudgment by demonstrating, prima facie, that the plaintiff did not sustain any damages as a resultof their actions. Specifically, the defendants established that their efforts on the plaintiff's behalfresulted in his continuing to reside in his house for approximately seven years, during which[*2]time the value of his house increased significantly. Moreover,the defendants established that during that period the plaintiff was not paying his mortgage,taxes, or insurance. In opposition, the plaintiff failed to raise a triable issue of fact as to whetherthe sum he eventually paid to the bank exceeded the amount that he saved by not paying hismortgage, taxes, and insurance for approximately seven years. The plaintiff's mere assertion,which was unsupported by competent evidence, that he had sustained monetary damages, wasinsufficient to raise a triable issue of fact (see Hernandez-Vega v Zwanger-Pesiri Radiology Group, 39 AD3d710 [2007]; Micciola v Sacchi,36 AD3d 869 [2007]). Accordingly, the Supreme Court properly granted the defendants'motion for summary judgment dismissing the complaint. Skelos, J.P., Covello, Leventhal andBelen, JJ., concur.