| McCluskey v Gabor & Gabor |
| 2009 NY Slip Op 02757 [61 AD3d 646] |
| April 7, 2009 |
| Appellate Division, Second Department |
| Peter McCluskey, Respondent-Appellant, v Gabor andGabor et al., Appellants-Respondents. |
—[*1] Peter McCluskey, Lynbrook, N.Y., respondent-appellant pro se.
In an action to recover damages for legal malpractice, the defendants appeal, as limited bytheir brief, from (1) so much of an order of the Supreme Court, Nassau County (Diamond, J.),entered January 31, 2008, as denied that branch of their cross motion which was for summaryjudgment dismissing so much of the complaint as was premised on their failure to appeal fromcertain portions of an interlocutory order entered in an underlying age discrimination actionentitled McCluskey v County of Suffolk, commenced in the Supreme Court, SuffolkCounty, under index No. 00-19762, and (2) so much of an order of the same court dated May 7,2008, as, upon reargument, adhered to the original determination in the order entered January 31,2008, and the plaintiff cross-appeals, as limited by his brief, from (1) so much of the orderentered January 31, 2008, as denied his motion for summary judgment on the complaint, and (2)so much of the order dated May 7, 2008, as denied his cross motion for leave to reargue hismotion for summary judgment on the complaint, which had been determined in the order enteredJanuary 31, 2008, and for leave to amend the complaint.
Ordered that the appeal from the order entered January 31, 2008 is dismissed, as the portionof the order appealed from was superseded by the order dated May 7, 2008, made uponreargument; and it is further,
Ordered that the cross appeal from so much of the order dated May 7, 2008, as denied thatbranch of the plaintiff's cross motion which was for leave to reargue his motion for summary[*2]judgment on the complaint is dismissed, as no appeal liesfrom an order denying reargument; and it is further,
Ordered that the order entered January 31, 2008 is affirmed insofar as cross-appealed from;and it is further,
Ordered that the order dated May 7, 2008 is reversed insofar as appealed from, on the law,upon reargument, so much of the order entered January 31, 2008, as denied that branch of thedefendants' cross motion which was for summary judgment dismissing so much of the complaintas was premised on their failure to appeal from certain portions of an interlocutory order enteredin the underlying age discrimination action is vacated, and that branch the defendants' motionwhich was for summary judgment dismissing so much of the complaint as was premised on theirfailure to appeal from certain portions of an interlocutory order entered in the underlying agediscrimination action is granted; and it is further,
Ordered that the order dated May 7, 2008 is affirmed insofar as reviewed on the crossappeal; and it is further,
Ordered that one bill of costs is awarded to the defendants.
To prevail on a claim for legal malpractice, "a plaintiff must demonstrate that the attorney'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 causedplaintiff 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 Noone v Stieglitz, 59 AD3d505 [2009]). If the alleged malpractice is based on the attorney's failure to perfect an appealfrom an order dismissing a cause of action in an underlying action, the plaintiff must show that,had the attorney perfected that appeal, the appeal would have been successful, the cause ofaction would have been reinstated, and the plaintiff would have prevailed on that cause of actionin the underlying action (see Suffolk Ave. Car Wash & Lube v Oberman, 256 AD2d 75[1998]; Saferstein v Klein, 250 AD2d 831 [1998]).
Here, the plaintiff alleged, inter alia, that the defendants committed malpractice by failing totake an appeal in the underlying age discrimination action from so much of an order as dismissedhis causes of action alleging fraud. We find, however, that, inasmuch as the causes of actionalleging fraud were properly dismissed (see Kaufman v Torkan, 51 AD3d 977, 980 [2008]; Weitz vSmith, 231 AD2d 518 [1996]), the plaintiff cannot establish that the defendants committedmalpractice by failing to take an appeal from that order (see Suffolk Ave. Car Wash & Lubev Oberman, 256 AD2d 75 [1998]; Saferstein v Klein, 250 AD2d 831 [1998]).Consequently, the Supreme Court should have granted that branch of the defendants' crossmotion which was for summary judgment dismissing so much of the complaint as alleged thatthey committed legal malpractice by virtue of their failure to take an appeal from the portion ofthe order in the underlying action dismissing the fraud causes of action.
The defendants' alleged misconduct, even if it were proven, did not rise to a violation ofJudiciary Law § 487 that would warrant the imposition of treble damages (see Gelminv Quicke, 224 AD2d 481, 483 [1996]). Consequently, that branch of the plaintiff's crossmotion which was for leave to amend the complaint to add causes of action alleging a violationof Judiciary Law § 487 was properly denied as patently devoid of merit (see Lucido v Mancuso, 49 AD3d220, 226-227 [2008], lv granted 2008 NY Slip Op 68750[U] [2d Dept 2008];Glorioso v DeBlasio, [*3]227 AD2d 588, 589 [1996]).
The plaintiff's remaining contentions are without merit. Fisher, J.P., Miller, Angiolillo andBalkin, JJ., concur. [See 18 Misc 3d 1129(A), 2008 NY Slip Op 50234(U).]