| Hamoudeh v Mandel |
| 2009 NY Slip Op 04195 [62 AD3d 948] |
| May 26, 2009 |
| Appellate Division, Second Department |
| Ghazi Hamoudeh, Respondent, v Gary J. Mandel et al.,Appellants. |
—[*1] Glinkenhouse, Floumanhaft & Queen, Cedarhurst, N.Y. (Alan Queen of counsel), forrespondent.
In an action to recover damages for legal malpractice, the defendants appeal from an order ofthe Supreme Court, Queens County (Lane, J.), dated July 28, 2008, which denied their motionfor summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is granted.
The plaintiff allegedly slipped and fell while descending an exterior staircase of a privateresidence. The plaintiff retained the defendants to commence an action to recover damages forhis personal injuries. Subsequently, the plaintiff commenced this action against the defendants,alleging that they had failed to timely commence such an action. During a deposition, theplaintiff stated that he did not know what had caused him to fall. The defendants moved forsummary judgment, contending that the plaintiff would not have prevailed in the underlyingaction even if they had timely commenced an action. The Supreme Court denied the motion. Wereverse.
To establish a cause of action to recover damages for legal malpractice, a plaintiff mustprove that the attorney "failed to exercise the ordinary reasonable skill and knowledgecommonly possessed by a member of the legal profession and that the attorney's breach of thisduty proximately caused the plaintiff actual and ascertainable damages" (Maiolini vMcAdams & Fallon, P.C., 61 AD3d 644, 645 [2009] [citations and internal quotation marksomitted]). "To establish causation, a plaintiff must show that he or she would have prevailed inthe underlying action or would not have incurred any damages, but for the lawyer's negligence"(id. [citations omitted]; see alsoPedro v Walker, 46 AD3d 789 [2007]; Lichtenstein v Barenbaum, 23 AD3d 440 [2005]; Porello v Longworth, 21 AD3d541 [2005]; Dimond vKazmierczuk & McGrath, 15 AD3d 526 [2005]; Iannarone v Gramer, 256AD2d 443, 444 [1998]).
Here, the defendants established, prima facie, that even if they had commenced a timelyaction, the plaintiff would not have been successful on the merits, since he could not identifywhat had caused him to fall (seeCostantino v Webel, 57 AD3d 472 [2008]; Karwowski v New York City Tr. Auth.,44 [*2]AD3d 826 [2007]; Manning v 6638 18th Ave. Realty Corp., 28 AD3d 434 [2006]; Golba v City of New York, 27 AD3d524 [2006]; Tejada v Jonas, 17AD3d 448 [2005]). In opposition, the plaintiff failed to raise a triable issue of fact (see Denicola v Costello, 44 AD3d990 [2007]; Tejada v Jonas, 17AD3d 448 [2005]; Sanchez v City of New York, 305 AD2d 487 [2003]). Mastro,J.P., Miller, Chambers and Austin, JJ., concur.