| Mueller v Fruchter |
| 2010 NY Slip Op 01771 [71 AD3d 650] |
| March 2, 2010 |
| Appellate Division, Second Department |
| Carole Mueller, Respondent, v Joseph B. Fruchter et al.,Appellants. |
—[*1] Russ & Russ, P.C., Massapequa, N.Y. (Jay Edmond Russ of counsel), forrespondent.
In an action to recover damages for legal malpractice, the defendants appeal from so much ofan order of the Supreme Court, Suffolk County (Spinner, J.), dated August 14, 2008, as deniedthat branch of their motion which was for summary judgment dismissing the plaintiff's firstcause of action.
Ordered that the order is affirmed insofar as appealed from, with costs.
"In an action to recover damages for legal malpractice, a plaintiff must demonstrate that theattorney 'failed to exercise the ordinary reasonable skill and knowledge commonly possessed bya member of the legal profession' and that the attorney's breach of this duty proximately causedplaintiff to sustain actual and ascertainable damages" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438,442 [2007], quoting McCoy v Feinman, 99 NY2d 295, 301 [2002]). "To establishcausation, a plaintiff must show that he or she would have prevailed in the underlying action orwould not have incurred any damages, but for the lawyer's negligence" (Rudolf v Shayne,Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442). "For a defendant in a legal malpracticeaction to succeed on a motion for summary judgment, evidence must be submitted in admissibleform establishing that the plaintiff is unable to prove at least one of these essential elements"(Shopsin v Siben & Siben, 268 AD2d 578, 578 [2000]; see Eisenberger v Septimus, 44 AD3d994 [2007]).
Here, the Supreme Court properly denied that branch of the defendants' motion which wasfor summary judgment dismissing the plaintiff's first cause of action (see Rosenstrauss v Jacobs & Jacobs,56 AD3d 453, 454 [2008]; Velie vEllis Law, P.C., 48 AD3d 674, 675 [2008]; Pedro v Walker, 46 AD3d 789, 790 [2007]). The defendants failedto make a prima facie showing of their entitlement to judgment as a matter of law since theyfailed to show that the plaintiff was unable to prove at least one of the essential elements of herlegal malpractice cause of action (see Rosenstrauss v Jacobs & Jacobs, 56 AD3d at 454;Velie v Ellis Law, P.C., 48 AD3d at 675; Pedro v Walker, 46 AD3d at 790).Thus, we need not address the sufficiency of the opposing papers (see Winegrad v New YorkUniv. Med. Ctr., 64 NY2d 851, 853 [1985]). Mastro, J.P., Angiolillo, Balkin and Sgroi, JJ.,concur.