| Conklin v Owen |
| 2010 NY Slip Op 03399 [72 AD3d 1006] |
| April 27, 2010 |
| Appellate Division, Second Department |
| Clarence Conklin, Respondent-Appellant, v Joseph A.Owen et al., Appellants-Respondents. |
—[*1] Charles M. Hymowitz, P.C., Brooklyn, N.Y., for respondent-appellant.
In an action, inter alia, to recover damages for legal malpractice, the defendants appeal fromso much of an order of the Supreme Court, Westchester County (Cozzens, Jr., J.), entered July28, 2009, as denied their motion for summary judgment dismissing the complaint, and theplaintiff cross-appeals, as limited by his brief, from so much of the same order as denied hiscross motion for summary judgment on the issue of liability.
Ordered that the order is modified, on the law, by deleting the provision thereof denyingthose branches of the defendants' motion which were for summary judgment dismissing thesecond and third causes of action and substituting therefor a provision granting those branches ofthe motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from,without costs or disbursements.
In September 2002 the plaintiff retained the defendant Joseph A. Owen, a New Yorkattorney, and his law firm, the defendant Owen Law Firm, PLLC, to represent him. Therepresentation arose out of an accident that occurred on August 4, 2002, at a fair in SussexCounty, New Jersey, when a swing the plaintiff sat on allegedly flipped over. The swingallegedly was owned or maintained by a New Jersey entity named Images of Our Own(hereinafter Images). By letter dated June 21, 2005, Owen withdrew as counsel, advising theplaintiff that New York's three-year statute of limitations was about to expire and to consultanother attorney. The plaintiff alleged that the defendants failed to commence an action beforethe two-year statute of limitations expired in New Jersey, and, as a result, the plaintiffcommenced this legal malpractice action.
An attorney is liable in a malpractice action if the plaintiff can prove that the attorney failedto exercise the skill commonly exercised by an ordinary member of the legal community and thatsuch negligence was the proximate cause of damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d438, 442 [2007]; Barnett vSchwartz, 47 AD3d 197, 203 [2007]; Baker, Sanders, Barshay, Grossman, Fass,Muhlstock & Neuwirth, LLC v Comprehensive Mental Assessment & Med. Care, P.C., 26Misc 3d 1109, 1120-1121 [2010]). An attorney may be liable for ignorance of the rules ofpractice, for failure to comply with conditions precedent to suit, for neglect to prosecute ordefend an action, or for failure to conduct adequate legal research (see McCoy v Tepper,261 AD2d 592 [1999]; [*2]Gardner v Jacon, 148 AD2d794, 796 [1989]; Grago v Robertson, 49 AD2d 645, 646 [1975]).
To succeed on a motion for summary judgment, the defendants were required to demonstratethat the plaintiff is unable to prove at least one of the essential elements of a legal malpracticecause of action (see Allen v Potruch, 282 AD2d 484 [2001]; Shopsin v Siben &Siben, 268 AD2d 578 [2000]). The defendants, as the movants, failed to submit evidencesufficient to establish their entitlement to judgment as a matter of law (see Alvarez vProspect Hosp., 68 NY2d 320 [1986]). The plaintiff likewise also failed to meet his initialburden on his cross motion (id.). There are triable issues of fact, inter alia, as towhether a timely action could have been commenced in a New York court at the time thedefendant attorney withdrew (see CPLR 202). Therefore, the Supreme Court properlydenied that branch of the defendants' motion which was to dismiss the cause of action to recoverdamages for legal malpractice and the plaintiff's cross motion for summary judgment on thecause of action to recover damages for legal malpractice.
However, the Supreme Court should have granted those branches of the defendants' motionwhich were for summary judgment dismissing the plaintiff's second cause of action to recoverdamages for breach of contract and third cause of action to recover damages for negligentrepresentation, since these causes of action arise from the same facts as his legal malpracticecause of action and are duplicative of that cause of action (see Sitar v Sitar, 50 AD3d 667, 670 [2008]; Shivers v Siegel, 11 AD3d 447[2004]; Malarkey v Piel, 7 AD3d681 [2004]; Mecca v Shang, 258 AD2d 569 [1999]). Fisher, J.P., Dillon, Dickersonand Belen, JJ., concur.