| Anne Koplick Designs, Inc. v Lite |
| 2010 NY Slip Op 06356 [76 AD3d 535] |
| August 10, 2010 |
| Appellate Division, Second Department |
| Anne Koplick Designs, Inc., et al., Respondents, v JustinN. Lite et al., Appellants. (And a Third-Party Action.) |
—[*1] Schwartz & Ponterio, PLLC, New York, N.Y. (Matthew F. Schwartz of counsel), forrespondents.
In an action to recover damages for legal malpractice, the defendants appeal, as limited bytheir brief, from so much of an order of the Supreme Court, Putnam County (O'Rourke, J.), datedAugust 17, 2009, as granted that branch of the plaintiffs' motion which was for summaryjudgment on the issue of liability.
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] [internal quotation marks omitted]). "To establish causation, a plaintiff must showthat he or she would have prevailed in the underlying action or would not have incurred anydamages, but for the lawyer's negligence" (id. at 442).
Here, the plaintiffs made a prima facie showing of their entitlement to judgment as a matterof law on the issue of liability (see CPLR 3212 [b]; Yiouti Rest. v Sotiriou, 151AD2d 744, 745 [1989]). In support of their motion, the plaintiffs submitted an expert affirmationof an attorney establishing that the defendant Justin N. Lite failed to exercise the ordinaryreasonable skill and knowledge commonly possessed by a member of the legal profession by,among other things, advising the plaintiffs to default in a lawsuit commenced against them inCalifornia and advising them that a default judgment obtained in California would not beenforceable in New York, a clearly incorrect statement of the law (see Logalbo v Plishkin,Rubano & Baum, 163 AD2d 511 [1990]; Yiouti Rest. v Sotiriou, 151 AD2d at 745).The plaintiffs' submissions also established that, but for the defendants' malpractice, they wouldhave succeeded in defending the underlying claim. In opposition, the defendants failed to raise atriable issue of fact (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]).[*2]
Moreover, while determination of a summary judgmentmotion may be delayed to allow for further discovery where evidence necessary to oppose themotion is unavailable to the opponent (see CPLR 3212 [f]), "[a] determination ofsummary judgment cannot be avoided by a claimed need for discovery unless some evidentiarybasis is offered to suggest that discovery may lead to relevant evidence" (Ruttura & SonsConstr. Co. v Petrocelli Constr., 257 AD2d 614, 615 [1999]; see Williams v D & J School Bus, Inc.,69 AD3d 617, 619 [2010]; Wyllie vDistrict Attorney of County of Kings, 2 AD3d 714, 717 [2003]). The defendants failedto provide an evidentiary basis for their assertion that further discovery would lead to additionalrelevant evidence (see Lambert vBracco, 18 AD3d 619, 620 [2005]).
Accordingly, that branch of the plaintiffs' motion which was for summary judgment on theissue of liability was properly granted. Dillon, J.P., Miller, Eng and Chambers, JJ., concur.