| Maiolini v McAdams & Fallon, P.C. |
| 2009 NY Slip Op 02755 [61 AD3d 644] |
| April 7, 2009 |
| Appellate Division, Second Department |
| Jean Maiolini, Respondent, v McAdams & Fallon, P.C.,Appellant. |
—[*1] Stephen R. Bosin, New York, N.Y., for respondent.
In an action to recover damages for legal malpractice and breach of contract, the defendantappeals from an amended order of the Supreme Court, Rockland County (Garvey, J.), enteredApril 7, 2008, which denied its motion for summary judgment dismissing the amendedcomplaint.
Ordered that the amended order is reversed, on the law, with costs, and the defendant'smotion for summary judgment dismissing the amended complaint is granted.
The plaintiff was employed as an accounts receivable manager for Medco Health Solutions,Inc. (hereinafter Medco). In March 2004, allegedly suffering from the effects oftemporomandibular joint syndrome, commonly referred to as TMJ, the plaintiff applied forshort-term disability benefits pursuant to an employer-provided disability insurance policyadministered by Prudential Insurance Company (hereinafter Prudential). The plaintiff receivedshort-term disability payments from March 25, 2004 through June 16, 2004. On July 22, 2004Prudential terminated the short-term disability payments effective June 17, 2004 and also deniedthe plaintiff's claim for long-term disability benefits. Pursuant to the Prudential policy, theplaintiff filed an administrative appeal. On December 17, 2004 Prudential upheld its earlierdetermination and advised the plaintiff that if she wished to appeal to Prudential's appealscommittee, she had to do so within 180 days. At some point thereafter, the plaintiff retained thedefendant to represent her in connection with her claim for disability benefits. However, thedefendant failed to timely file an appeal with Prudential of the December 17, 2004determination.[*2]
In June 2006 the plaintiff commenced this action againstthe defendant to recover damages for legal malpractice and breach of contract. After discoverywas completed, the defendant moved for summary judgment dismissing the amended complaintcontending, inter alia, that the plaintiff would be unable to prove that the failure to file thesecond administrative appeal was the proximate cause of the plaintiff's alleged damages. TheSupreme Court denied the motion. We reverse.
To prevail in a legal malpractice action a plaintiff must establish that the attorney " 'failed toexercise the ordinary reasonable skill and knowledge commonly possessed by a member of thelegal profession' and that the attorney's breach of this duty proximately caused the plaintiff actualand ascertainable damages" (Kutner vCatterson, 56 AD3d 437, 437 [2008], quoting Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438,442 [2007]). "To establish causation, a plaintiff must show that he or she would have prevailedin 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; see Teodorescu v Resnick & Binder, P.C.,55 AD3d 721, 722 [2008]).
The defendant established its entitlement to judgment as a matter of law by demonstratingthat the plaintiff would not have succeeded on a second administrative appeal, even if one hadbeen timely filed (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Campbell v Tamsen, 37 AD3d636, 636-637 [2007]; Flinn v Aab, 167 AD2d 507 [1990]). In opposition, theplaintiff failed to raise a triable issue of fact (see Teodorescu v Resnick & Binder, P.C.,55 AD3d at 721-722; Campbell v Tamsen, 37 AD3d at 637). Accordingly, theSupreme Court should have awarded summary judgment to the defendant dismissing the legalmalpractice cause of action.
In addition, the Supreme Court should have awarded summary judgment dismissing thebreach of contract cause of action since it was duplicative of the legal malpractice cause ofaction (see Gelfand v Oliver, 29AD3d 736, 737 [2006]; Shivers vSiegel, 11 AD3d 447 [2004]).
The parties' remaining contentions either are without merit or need not be reached in light ofour determination. Spolzino, J.P., Dillon, Florio and Angiolillo, JJ., concur.