| Ali v Fink |
| 2009 NY Slip Op 08766 [67 AD3d 935] |
| November 24, 2009 |
| Appellate Division, Second Department |
| Gloria Ali, Respondent, v Stephen David Fink,Appellant. |
—[*1] Sherwood Allen Salvan, New York, N.Y., for respondent.
In an action to recover damages for legal malpractice, the defendant appeals, as limited byhis brief, from so much of an order of the Supreme Court, Queens County (Dollard, J.), enteredAugust 11, 2008, as denied that branch of his motion which was for summary judgmentdismissing the complaint.
Ordered that the order is affirmed insofar as appealed from, with costs.
The plaintiff retained the defendant attorney to represent her in an action to recover thebalance due under several promissory notes (hereinafter the collection action). In April 2001 thedefendant obtained a default judgment on the plaintiff's behalf against the debtor in the collectionaction. Several months later, the defendant commenced a second action on the plaintiff's behalf,seeking to set aside a transfer of real property which the debtor had allegedly made to impede theplaintiff's ability to recover under the promissory notes (hereinafter the fraudulent conveyanceaction). Although the defendant obtained a default judgment against the debtor and the transfereein the fraudulent conveyance action, while that action was pending, title to the property wastransferred twice more. The plaintiff subsequently commenced this legal malpractice actionagainst the defendant, alleging, inter alia, that he had negligently failed to file a notice ofpendency upon commencement of the fraudulent conveyance action, and that his failure to do sohad allowed title to the subject property to be transferred to bona fide purchasers, thus effectivelyputting the property out of reach as a means of enforcing her judgment in the collection action.The defendant moved, among other things, for summary judgment dismissing the complaint,contending that the plaintiff could not establish that she would have been able to recover againstthe debtor in the collection action "but for" his alleged negligence because the promissory noteswere invalid, and that she would not have prevailed in the fraudulent conveyance action on themerits because the transfer which was the subject of that action had not actually been fraudulent.The defendant also contended that the plaintiff had not sustained any injury because the debtorhad other assets from which the judgment in the collection action could be satisfied, or, in thealternative, that his alleged malpractice was not a proximate cause of any injury which theplaintiff may have sustained. The Supreme Court denied the defendant's motion, and we affirm.
In order to prevail in an action to recover damages for legal malpractice, a plaintiff mustestablish that the defendant attorney failed to exercise the ordinary reasonable skill and [*2]knowledge commonly possessed by a member of the legalprofession, and that the breach of this duty proximately caused the plaintiff to sustain actual andascertainable damages (see Rudolf vShayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Leone v Silver & Silver, LLP, 62AD3d 962 [2009]; Fireman's FundIns. Co. v Farrell, 57 AD3d 721, 722 [2008]; Velie v Ellis Law, P.C., 48 AD3d 674, 675 [2008]). To establishthe element of causation, a plaintiff must show that he or she would have prevailed in theunderlying action or would not have incurred any damages but for the attorney's negligence(see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442; Fireman'sFund Ins. Co. v Farrell, 57 AD3d at 722; Carrasco v Pena & Kahn, 48 AD3d 395, 396 [2008]). An attorneymoving for summary judgment dismissing a legal malpractice claim has the burden ofestablishing, through the submission of proof in evidentiary form, that the plaintiff is unable toprove at least one of the essential elements of the cause of action (see Leone v Silver & Silver, LLP, 62AD3d 962 [2009]; Fireman's Fund Ins. Co. v Farrell, 57 AD3d at 722; Velie vEllis Law, P.C., 48 AD3d at 675).
Contrary to the defendant's contention, the Supreme Court properly concluded that he failedto sustain his prima facie burden of demonstrating that the plaintiff would be unable to prove oneof the essential elements of her malpractice cause of action. Although the defendant contendsthat the plaintiff cannot establish the element of causation because she could not have prevailedon the merits in the underlying collection and fraudulent conveyance actions, neither of thedefault judgments have been set aside. Under these circumstances, the Supreme Court correctlydetermined that the plaintiff need not prove that she would have prevailed on the merits in thoseactions in order to establish the element of causation. The defendant's evidentiary submissionswere also insufficient to demonstrate, as a matter of law, that the plaintiff either sustained noinjury, or that his alleged malpractice was not a proximate cause of any injury which she mayhave sustained (see generally Zuckerman v City of New York, 49 NY2d 557, 562[1980]). Fisher, J.P., Angiolillo, Eng and Lott, JJ., concur.