| Nelson v Roth |
| 2010 NY Slip Op 00658 [69 AD3d 912] |
| January 26, 2010 |
| Appellate Division, Second Department |
| Quadasia Nelson et al., Respondents, v Pamela S. Roth,Defendant/Third-Party Plaintiff-Appellant. Maurice Sieradzki, Third-PartyDefendant-Respondent. |
—[*1] Maurice Sieradzki, New York, N.Y., for plaintiffs-respondents. Furman Kornfeld & Brennan LLP, New York, N.Y. (A. Michael Furman of counsel), forthird-party defendant-respondent.
In an action to recover damages for legal malpractice, the defendant third-party plaintiffappeals from an order of the Supreme Court, Kings County (Hinds-Radix, J.), dated March 10,2009, which granted that branch of the motion of the third-party defendant which was pursuantto CPLR 3211 (a) (7) to dismiss the third-party cause of action to recover damages for legalmalpractice, denied that branch of her cross motion which was for summary judgment dismissingthe complaint, and, in effect, denied that branch of her cross motion which was to disqualify thethird-party defendant as counsel for the plaintiffs.
Ordered that the order is affirmed, with one bill of costs.
The infant plaintiff, by her mother, and the mother, individually, commenced this actionagainst the defendant, Pamela S. Roth, to recover damages for legal malpractice. Thereafter,Roth commenced a third-party action against the plaintiff's current attorney, the third-partydefendant, Maurice Sieradzki, inter alia, to recover damages for legal malpractice. Sieradzkimoved, pursuant to CPLR 3211 (a) (7), among other things, to dismiss Roth's cause of action torecover damages for legal malpractice on the ground that there was no attorney-clientrelationship between them. Roth, in turn, cross-moved for summary judgment dismissing thecomplaint on the ground that there was no attorney-client relationship between herself and theplaintiffs, and to disqualify Sieradzki as counsel for the plaintiffs.
The Supreme Court properly granted that branch of Sieradzki's motion which was to dismissthe third-party cause of action to recover damages for legal malpractice. "On a motion to dismisspursuant to CPLR 3211 (a) (7), the pleading is to be afforded a liberal construction" (Kempf v Magida, 37 AD3d 763,764 [2007]). The court must accept the facts as alleged in the complaint as true, accord theplaintiffs the benefit of every possible favorable inference, and determine whether the facts asalleged fit within any cognizable legal theory (see Arnav Indus., Inc. Retirement Trust vBrown, Raysman, Millstein, Felder & Steiner, 96 NY2d 300, 303 [2001]; Leon vMartinez, 84 NY2d 83, [*2]87-88 [1994]). To establish acause of action alleging legal malpractice, a plaintiff must prove, inter alia, the existence of anattorney-client relationship (see Terio vSpodek, 63 AD3d 719, 721 [2009]; Velasquez v Katz, 42 AD3d 566, 567 [2007]). To prove anattorney-client relationship, there must be an explicit undertaking "to perform a specific task"(Terio v Spodek, 63 AD3d at 721). " 'It is well established that, with respect to attorneymalpractice, absent fraud, collusion, malicious acts, or other special circumstances, an attorney isnot liable to third parties, not in privity, for harm caused by professional negligence' " (Moran v Hurst, 32 AD3d 909, 911[2006], quoting Rovello v Klein, 304 AD2d 638, 638 [2003]). Viewing the third-partycomplaint in the light most favorable to Roth, she failed to allege the existence of anattorney-client relationship between herself and Sieradzki.
Further, the Supreme Court properly denied that branch of Roth's cross motion which wasfor summary judgment dismissing the complaint. "To make a prima facie showing on a motionfor summary judgment, the attorney in a legal malpractice action must present admissibleevidence that the plaintiff cannot prove at least one of the essential elements of a legalmalpractice claim" (Terio v Spodek, 63 AD3d at 721). The evidence submitteddemonstrated the existence of a triable issue of fact as to whether there was an attorney-clientrelationship between Roth and the plaintiffs. In light of Roth's failure to meet her prima facieburden, it is unnecessary to consider the adequacy of the plaintiffs' opposing papers (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
Finally, the Supreme Court properly, in effect, denied that branch of Roth's cross motionwhich was to disqualify Sieradzki as counsel for the plaintiffs. Roth failed to satisfy her burdenby offering any proof that Sieradzki's testimony would be "necessary" (Bentvena v Edelman, 47 AD3d651, 652 [2008]). Rivera, J.P., Leventhal, Belen and Austin, JJ., concur.