| Boglia v Greenberg |
| 2009 NY Slip Op 05278 [63 AD3d 973] |
| June 23, 2009 |
| Appellate Division, Second Department |
| Susan Boglia, Appellant, v Edward C. Greenberg et al.,Respondents. |
—[*1] Traub Lieberman Straus & Shrewsberry, LLP, Hawthorne, N.Y. (Christopher Russo ofcounsel), for respondents.
In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals froman order of the Supreme Court, Nassau County (De Maro, J.), entered December 27, 2007, whichdenied her motion for summary judgment on the first and fifth causes of action and for summaryjudgment dismissing the counterclaim to recover outstanding legal fees, and granted thosebranches of the defendants' cross motion which were for summary judgment dismissing thecomplaint and for summary judgment on the counterclaim to recover outstanding legal fees.
Ordered that the order is modified, on the law, by deleting the provisions thereof grantingthose branches of the defendants' cross motion which were for summary judgment dismissing thesecond and fifth causes of action and for summary judgment on the counterclaim to recoveroutstanding legal fees and substituting thereof provisions denying those branches of the crossmotion; as so modified, the order is affirmed, without costs or disbursements.
The plaintiff retained the defendants to represent her in a matrimonial action seeking, interalia, equitable distribution of the marital assets, which primarily consisted of a residence that theplaintiff and her former husband resided in during the marriage. It was undisputed that theresidence was inherited by the former husband prior to the marriage. During the course of theunderlying action, the plaintiff terminated the defendants' representation of her and hired anotherattorney, who had previously been employed by the defendants, to represent her. The plaintiffeventually settled the underlying action with her former husband before proceeding to trial andreceived a settlement in the amount of $200,000.
The plaintiff commenced this action against the defendants seeking, inter alia, to recoverdamages for legal malpractice alleging that the defendants negligently advised her of her rightsto equitable distribution of the residence, and failed to communicate an offer of settlement to herin the amount of $250,000. She also sought to recover legal fees already paid to the defendantson the grounds that the fees were excessive and that she had discharged the defendants for cause.The defendants brought a counterclaim against the plaintiff seeking to recover outstanding legalfees.[*2]
To sustain a cause of action alleging legal malpractice, aplaintiff must establish that the attorney "failed to exercise the ordinary reasonable skill andknowledge commonly possessed by a member of the legal profession," and that the attorney'sbreach of this duty proximately caused the plaintiff actual and ascertainable damages (Rudolfv Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007], quoting McCoy vFeinman, 99 NY2d 295, 301-302 [2002]; see Bauza v Livington, 40 AD3d 791,792-793 [2007]; Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303 AD2d 561,562 [2003]). To obtain summary judgment dismissing a complaint in an action to recoverdamages for legal malpractice, a defendant must demonstrate that the plaintiff is unable to proveat least one of the essential elements of its legal malpractice cause of action (see Kotzian vMcCarthy, 36 AD3d 863, 863 [2007]; Fasanella v Levy, 27 AD3d 616, 616 [2006]).The defendants met their burden of establishing entitlement to judgment as a matter of law bydemonstrating that the plaintiff would be unable to prove that, but for the defendants' allegednegligent advice regarding her rights to equitable distribution, she would have prevailed in theunderlying action had it proceeded to trial. The plaintiff, in opposition, failed to raise a triableissue of fact. Accordingly, the Supreme Court properly granted that branch of the defendants'cross motion which was for summary judgment dismissing the first cause of action, alleginglegal malpractice based upon the defendants' alleged negligent advice regarding her rights toequitable distribution of the residence, and properly denied that branch of the plaintiff's motionwhich was for summary judgment on that cause of action (see Oberkirch v Charles G.Eichinger, P.C., 35 AD3d 558, 559 [2006]).
However, the Supreme Court should have denied that branch of the defendants' cross motionwhich was for summary judgment dismissing the second cause of action, alleging legalmalpractice based upon their alleged failure to convey her former husband's $250,000 settlementoffer to her, as triable issues of fact exist regarding whether the defendants failed to convey thesettlement offer to the plaintiff and whether the plaintiff would have accepted that offer (cf.Bauza v Livington, 40 AD3d at 793).
The Supreme Court properly granted that branch of the defendants' cross motion which wasfor summary judgment dismissing the plaintiff's cause of action to recover damages pursuant toJudiciary Law § 487 (1). A violation of Judiciary Law § 487 (1) may be established"either by the defendant's alleged deceit or by an alleged chronic, extreme pattern of legaldelinquency by the defendant" (Knecht v Tusa, 15 AD3d 626, 627 [2005]; see IzkoSportswear Co., Inc. v Flaum, 25 AD3d 534 [2006]). The defendants met their burden ofestablishing entitlement to judgment as a matter of law by demonstrating that the plaintiff did notsustain any damages which were proximately caused by the defendants' alleged deception or byan alleged chronic, extreme pattern of legal delinquency (see O'Connell v Kerson, 291AD2d 386 [2002]; O'Connor v Dime Sav. Bank of N.Y., 265 AD2d 313 [1999]). Inopposition, the plaintiff failed to raise a triable issue of fact (see Alvarez v Prospect Hosp.,68 NY2d 320, 324 [1986]). The Supreme Court also properly granted that branch of thedefendants' cross motion which was for summary judgment dismissing the cause of action torecover damages pursuant to Judiciary Law § 487 (2). The defendants made a prima facieshowing of their entitlement to judgment as a matter of law by establishing that there was noevidence that they wilfully delayed the plaintiff's lawsuit with a view toward their own gain(see Judiciary Law § 487 [2]). In opposition, the plaintiff failed to raise a triableissue of fact (see Alvarez v Prospect Hosp., 68 NY2d at 324).
Neither party was entitled to summary judgment on the fifth cause of action, to recover legalfees already paid to the defendants on the grounds that the defendants were discharged for causeand that the fees charged were excessive, or on the defendants' counterclaim seeking outstandinglegal fees. Contrary to the defendants' contention, the fifth cause of action was not duplicative ofthe legal malpractice causes of action. Additionally, there are questions of fact regarding thedefendants' alleged negligent representation of the plaintiff (see York v Landa, 57 AD3d980 [2008]).
The parties' remaining contentions are without merit. Skelos, J.P., Fisher, Hall and Lott, JJ.,concur.