| Rosenstrauss v Jacobs & Jacobs |
| 2008 NY Slip Op 08472 [56 AD3d 453] |
| November 5, 2008 |
| Appellate Division, Second Department |
| Maurice Rosenstrauss, as Executor of Patricia J. Purgess, Deceased,Respondent, v Jacobs & Jacobs et al., Appellants. |
—[*1] Greenberg & Massarelli, LLP, Purchase, N.Y. (William Greenberg of counsel), for appellantsMarkovits & Markovits and Robert L. Markovits. Burke, Miele & Golden, LLP, Suffern, N.Y. (Robert M. Miele and Phyllis A. Ingram ofcounsel), for respondent.
In an action to recover damages for legal malpractice, (1) the defendants Jacobs & Jacobsand Michael A. Jacobs appeal, as limited by their brief, from so much of an order of the SupremeCourt, Orange County (Owen, J.), dated October 30, 2006, as denied their motion for summaryjudgment dismissing the complaint insofar as asserted against them, and (2) the defendantsMarkovits & Markovits and Robert L. Markovits separately appeal, as limited by their brief, fromso much of the same order as denied their separate motion for summary judgment dismissing thecomplaint insofar as asserted against them.
Ordered that the order is affirmed, with one bill of costs.
Patricia J. Purgess retained the defendants to represent her in an underlying medicalmalpractice action, which she commenced on November 4, 1993. In an order dated March 20,1996, the Supreme Court, Orange County, dismissed that action pursuant to CPLR 3404. Thedefendants neither moved to [*2]vacate that order nor perfectedan appeal therefrom. Nearly 11 years thereafter, Purgess moved to vacate the aforementionedorder of dismissal. In an order dated April 24, 2007 the Supreme Court denied her motion asbarred by the doctrine of laches. In a companion appeal, this Court is affirming the order datedApril 24, 2007 (see Rosenstrauss v Women's Imaging Ctr. of Orange County, 56 AD3d— , 2008 NY Slip Op 08473 [2008] [decided herewith]).
"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], quoting McCoy v Feinman, 99 NY2d 295, 301-302 [2002]; see Northrop v Thorsen, 46 AD3d780, 782 [2007]). "To establish causation, a plaintiff must show that he or she would haveprevailed in the underlying action or would not have incurred any damages, but for the lawyer'snegligence" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442). "Anattorney has the responsibility to 'investigate and prepare every phase' of his [or her] client's case"(Parksville Mobile Modular v Fabricant, 73 AD2d 595, 598 [1979], quotingGiaramita v Flow Master Mach. Corp., 234 NYS2d 817, 818 [1962]).
In support of their separate motions, the defendants failed to make a prima facie showing ofentitlement to judgment as a matter of law (see Winegrad v New York Univ. Med. Ctr.,64 NY2d 851, 853 [1985]). The defendants' contention that they cannot be held liablebecause the underlying medical malpractice action is still viable is without merit, as that actionhas been dismissed. Moreover, the argument of the defendants Markovits & Markovits andRobert L. Markovits (hereinafter together the Markovits defendants) that they cannot be liablebecause they merely referred Purgess to the other defendants is belied by the retainer agreementin which the Markovits defendants agreed to share any contingency fee in the medicalmalpractice action. Accordingly, the Supreme Court properly denied the defendants' separatemotions for summary judgment dismissing the complaint. Rivera, J.P., Florio and Chambers, JJ.,concur. Lifson, J., separately concurs on constraint of the decision on the companion appealupholding the dismissal of the underlying medical malpractice action (see Rosenstrauss vWomen's Imaging Ctr. of Orange County, 56 AD3d —, 2008 NY Slip Op08473[2008] [decided herewith]).