| DeNatale v Santangelo |
| 2009 NY Slip Op 06398 [65 AD3d 1006] |
| September 8, 2009 |
| Appellate Division, Second Department |
| Joseph DeNatale, Appellant, v Michael G. Santangelo etal., Defendants, and Ronald A. Ball et al., Respondents. |
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Furman Kornfeld & Brennan LLP, New York, N.Y. (A. Michael Furman and Melissa A.Manning of counsel), for respondents.
In an action to recover damages for legal malpractice, the plaintiff appeals from an order ofthe Supreme Court, Westchester County (Colabella, J.), entered February 28, 2008, whichgranted the motion of the defendants Ronald A. Ball, Wayne N. Rubin, and Ball & Rubin, LLP,to dismiss the complaint insofar as asserted against them pursuant to CPLR 3211 (a).
Ordered that the order is affirmed, with costs.
To establish a cause of action to recover damages for legal malpractice, a plaintiff mustprove "that the defendant-attorney failed to exercise that degree of care, skill, and diligencecommonly possessed by a member of the legal community," and "that the defendant-attorney'snegligence was a proximate cause of damages" (Barnett v Schwartz, 47 AD3d 197, 203-204 [2007]).
The retainer agreement prepared by the defendant law firm, and executed by the plaintiff,recited that the firm's representation of the plaintiff was limited to the defense of a civil action torecover damages for assault and battery, and the prosecution of a counterclaim against oneindividual, and not to the prosecution of counterclaims or separate plenary actions against otherindividuals or entities (see Peak vBartlett, Pontiff, Stewart & Rhodes, P.C., 28 AD3d 1028 [2006]). As such, the motionof the law firm and two of its members to dismiss the complaint insofar as asserted against themwas properly granted (see Mountain Lion Baseball v Gaiman, 263 AD2d 636 [1999]).
In addition, viewing the complaint in the light most favorable to the plaintiff (see Leon vMartinez, 84 NY2d 83, 87-88 [1994]), it failed to set forth allegations sufficient to state aclaim that the negligence of the law firm and its two members was a proximate cause of hisfailure to obtain a more favorable result in the underlying civil action (see Barnett vSchwartz, 47 AD3d at 203-204).
The plaintiff's remaining contentions are without merit. Skelos, J.P., Dillon, Covello andBelen, JJ., concur.