| Leone v Silver & Silver, LLP |
| 2009 NY Slip Op 04204 [62 AD3d 962] |
| May 26, 2009 |
| Appellate Division, Second Department |
| Ljubica Leone, Respondent, v Silver & Silver, LLP, et al.,Appellants. |
—[*1] Russo & Pedranghelu, Hicksville, N.Y. (Robert Alan Saasto of counsel), forrespondent.
In an action to recover damages for legal malpractice, the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Queens County (Cullen, J.), enteredSeptember 25, 2008, as denied their motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The gravamen of the plaintiff's complaint is that the defendants failed to protect her interestin connection with the fraudulent conveyance of certain real property. In order to prevail on thisclaim, the plaintiff must establish both that the defendants "failed to exercise the ordinaryreasonable skill and knowledge commonly possessed by a member of the legal profession" (Rudolf v Shayne, Dachs, Stanisci, Corker& Sauer, 8 NY3d 438, 442 [2007]; see Davis v Klein, 88 NY2d 1008,1009-1010 [1996]) and that their breach of this duty proximately caused her actual andascertainable damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3dat 442; see Hearst v Hearst, 50AD3d 959, 963 [2008]; Bauza vLivington, 40 AD3d 791, 792-793 [2007]). To succeed on their motion for summaryjudgment, the defendants were required to establish, through the submission of evidentiary proofin admissible form, that the plaintiff is unable to prove at least one of the essential elements ofthe cause of action (see Suydam v O'Neill, 276 AD2d 549 [2000]; Ostriker v Taylor,Atkins & Ostrow, 258 AD2d 572 [1999]). The Supreme Court correctly concluded that thedefendants failed to do so here. Contrary to the defendants' contention, the plaintiff's decision tosettle an action to recover the property, rather than risk dismissal on the basis of the defense oflaches allegedly caused by their conduct, does not preclude the plaintiff from maintaining asubsequent action against them to recover damages for legal malpractice (see N.A. KersonCo. v Shayne, Dachs, Weiss, Kolbrenner, Levy & Levine, 45 NY2d 730, 732 [1978]; Tortura v Sullivan Papain Block McGrath& Cannavo, P.C., 21 AD3d 1082, 1083 [2005]; Rau v Borenkoff, 262 AD2d388, 389 [1999]; Lattimore v Bergman, 224 AD2d 497 [1996]). The Supreme Court,therefore, properly denied the defendants' motion for summary judgment dismissing thecomplaint. Spolzino, J.P., Covello, Angiolillo and Dickerson, JJ., concur.