| Andzel v Cosgrove |
| 2008 NY Slip Op 08913 [56 AD3d 1226] |
| November 14, 2008 |
| Appellate Division, Fourth Department |
| Alice Andzel et al., Respondents, v Edward C. Cosgrove et al.,Appellants. |
—[*1] Robert Radman, New York City, for plaintiffs-respondents.
Appeal from an order of the Supreme Court, Erie County (Joseph D. Mintz, J.), entered June8, 2007 in a legal malpractice action. The order denied defendants' motion for summary judgmentdismissing the complaint.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this legal malpractice action seeking damages arisingfrom defendants' representation of them in an action to recover for injuries allegedly sustained byplaintiff Alice Andzel. Supreme Court properly denied defendants' motion for summaryjudgment dismissing the complaint. "In order to establish their entitlement to judgment as amatter of law, defendants had to present evidence in admissible form establishing that plaintiffsare unable to prove at least one necessary element of a legal malpractice action" (Potter vPolozie, 303 AD2d 943, 943 [2003]; see Ippolito v McCormack, Damiani, Lowe &Mellon, 265 AD2d 303 [1999]). Here, defendants failed to establish that plaintiffs wouldhave been unsuccessful in the underlying action (see Middleton v Kenny, 286 AD2d 957[2001]), and defendants thus failed to establish that any alleged negligence on their part was not aproximate cause of plaintiffs' damages with respect to that action (see Giardina v Lippes, 34 AD3d1220, 1221 [2006]). Present—Scudder, P.J., Centra, Lunn and Pine, JJ.