| Giardina v Lippes |
| 2010 NY Slip Op 06834 [77 AD3d 1290] |
| October 1, 2010 |
| Appellate Division, Fourth Department |
| Sharon J. Giardina, Appellant, v Richard J. Lippes et al., Doing Businessas Allen, Lippes & Shonn, et al., Respondents. |
—[*1] Ricotta & Visco, Attorneys & counselors at Law, Buffalo (K. John Bland of counsel), fordefendants-respondents.
Appeal from an order of the Supreme Court, Erie County (Kevin M. Dillon, J.), entered August 4,2009 in a legal malpractice action. The order granted defendants' motion for summary judgment anddismissed the complaint in its entirety.
It is hereby ordered that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this legal malpractice action, alleging that defendants, whorepresented her in the underlying toxic tort action, failed to comply with an order directing her to servethe defendants in the underlying action with her expert disclosure by a specified date. According toplaintiff, Supreme Court granted the motion of those defendants for summary judgment dismissing thecomplaint in its entirety based on plaintiff's failure to meet the deadline for expert disclosure.
Plaintiff contends that, because the defendants in this legal malpractice action previously moved forsummary judgment dismissing the complaint on a different ground and prevailed only in part (Giardina v Lippes, 34 AD3d 1220[2006]), their present motion for summary judgment dismissing the remainder of the complaint shouldhave been denied. We reject that contention. Although successive summary judgment motions generallyare disfavored absent newly discovered evidence or other sufficient cause (see Sexstone v Amato, 8 AD3d 1116[2004], lv denied 3 NY3d 609 [2004]; Town of Wilson v Town of Newfane, 192AD2d 1095 [1993]), neither Supreme Court nor this Court is precluded from addressing the merits ofsuch a motion (see McIvor v Di Benedetto, 121 AD2d 519, 522 [1986]).
In order to prevail on a motion for summary judgment seeking dismissal of a complaint for legalmalpractice, a defendant must establish that the plaintiff is unable to prove at least one necessaryelement of the legal malpractice action, i.e., that the plaintiff is unable to prove that he or she "wouldhave been successful on the underlying claim but for [the defendant's] negligence" (Potter vPolozie, 303 AD2d 943, 944 [2003]). Here, defendants met their burden of establishing that [*2]plaintiff would not have been successful on the underlying claim bysubmitting the affidavit of an expert who stated to a reasonable degree of medical certainty that therewas no evidence to support the allegation of plaintiff that her injuries were caused by her exposure to alawn care product. Plaintiff failed to raise an issue of fact with respect to the lack of causation, inasmuchas her expert simply made "subjective and conclusory" assertions with respect to causation in hisaffidavits (Parker v Mobil Oil Corp., 7NY3d 434, 449 [2006], rearg denied 8 NY3d 828 [2007]). Present—Scudder,P.J., Martoche, Peradotto, Green and Gorski, JJ.