| Berry v Utica Natl. Ins. Group |
| 2009 NY Slip Op 06935 [66 AD3d 1376] |
| October 2, 2009 |
| Appellate Division, Fourth Department |
| Arthur Berry, Appellant, v Utica National Insurance Group et al.,Defendants, and McClusky Law Firm, LLC, Respondent. |
—[*1] Hiscock & Barclay, LLP, Syracuse (Matthew J. Skiff of counsel), fordefendant-respondent.
Appeal from an order and judgment (one paper) of the Supreme Court, Oneida County(Samuel D. Hester, J.), entered November 18, 2008 in a legal malpractice action. The order andjudgment granted the motion of defendant McClusky Law Firm, LLC for summary judgmentdismissing the complaint against it.
It is hereby ordered that the order and judgment so appealed from is unanimously affirmedwithout costs.
Memorandum: Plaintiff commenced this action seeking, inter alia, damages arising from thealleged malpractice of McClusky Law Firm, LLC (defendant) in failing to commence a timelyaction against defendant Utica National Insurance Group (Utica National). Supreme Courtproperly granted the motion of defendant seeking summary judgment dismissing the complaintagainst it. "To recover damages for legal malpractice, a plaintiff must prove, inter alia, theexistence of an attorney-client relationship" (Moran v Hurst, 32 AD3d 909, 910 [2006]). Defendant met itsburden of establishing as a matter of law that it had no attorney-client relationship with plaintiff,and plaintiff failed to raise a triable issue of fact (see Volpe v Canfield, 237 AD2d 282,283 [1997], lv denied 90 NY2d 802 [1997]). The unilateral belief of plaintiff that he wasdefendant's client does not by itself confer that status upon him (see Rechberger v Scolaro, Shulman,Cohen, Fetter & Burstein, P.C., 45 AD3d 1453 [2007]; Moran, 32 AD3d at911). Further, evidence that plaintiff contacted defendant concerning his dispute with UticaNational does not establish the existence of an attorney-client relationship absent furtherevidence of an "explicit undertaking [by defendant] to perform a specific task" (Wei ChengChang v Pi, 288 AD2d 378, 380 [2001], lv denied 99 NY2d 501 [2002]; seeMcGlynn vGurda, 184 AD2d 980 [1992], appeal dismissed and lv denied 80 NY2d 988 [1992]).Present—Martoche, J.P., Smith, Peradotto, Carni and Green, JJ.