| Greene v Sager |
| 2010 NY Slip Op 08068 [78 AD3d 777] |
| November 9, 2010 |
| Appellate Division, Second Department |
| Gera Greene, Respondent-Appellant, v Karen GoldbergSager et al., Appellants-Respondents. |
—[*1] Harry I. Katz, P.C., Fresh Meadows, N.Y. (Shayne, Dachs, Corker, Sauer & Dachs, LLP[Jonahan A. Dachs], of counsel), for Gera Greene, respondent-appellant.
In an action to recover damages for legal malpractice, the defendants appeal from an order ofthe Supreme Court, Kings County (F. Rivera, J.), dated October 30, 2009, which denied theirmotion for summary judgment dismissing the complaint, and the plaintiff appeals from an orderof the same court dated November 10, 2009, which denied her cross motion for summaryjudgment on the issue of liability.
Ordered that the orders are affirmed, without costs or disbursements.
The defendants were retained by the plaintiff to represent her and to recover damages forinjuries she allegedly sustained when she stepped off a sidewalk and fell into a depressed area ina street in Queens, where the plaintiff alleges that she observed Consolidated Edison employeesworking on the day of her accident. The defendants failed to commence an action within thestatute of limitations period, and the plaintiff commenced this action against them, alleging legalmalpractice.
Prior to discovery, the Supreme Court denied a motion by the plaintiff and cross motion bythe defendants for summary judgment. After discovery, the defendants submitted additionalevidence and again moved for summary judgment dismissing the complaint, and the plaintiffcross-moved for summary judgment on the issue of liability. The Supreme Court determined themotion and cross motion on the merits, noting that its previous order denying the parties' motionshad been, in effect, without prejudice. Therefore, contrary to the plaintiff's contention, thedefendants' motion did not offend the rule against successive motions for summary judgment (see Carella v Reilly & Assoc., 6 AD3d373, 375 [2004]; Varsity Tr. v Board of Educ. of City of N.Y., 300 AD2d 38, 39[2002]; cf. Sutter v Wakefern FoodCorp., 69 AD3d 844, 845 [2010]).
An action alleging legal malpractice requires a plaintiff to establish that the defendantattorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by amember of the legal profession and that the breach of this duty was the proximate cause of actual[*2]damages sustained by the plaintiff (see Rudolf v Shayne, Dachs, Stanisci,Corker & Sauer, 8 NY3d 438, 442 [2007]; Theresa Striano Revocable Trust v Blancato, 71 AD3d 1122, 1123[2010]; Kluczka v Lecci, 63 AD3d796, 797 [2009]). To prove causation, the plaintiff must establish that, but for the defendantattorney's negligence, the plaintiff would have prevailed in the underlying action or would nothave sustained damages (see Theresa Striano Revocable Trust v Blancato, 71 AD3d at1123-1124; Gumbs v Friedman &Simon, 35 AD3d 362 [2006]; Blank v Harry Katz, P.C., 3 AD3d 512, 513 [2004]).
To succeed on their motion for summary judgment, the defendants were required todemonstrate that the plaintiff is unable to prove at least one of the essential elements of a legalmalpractice cause of action (see Conklinv Owen, 72 AD3d 1006, 1007 [2010]; Shopsin v Siben & Siben, 268 AD2d 578[2000]). The defendants, as movants, failed to meet this burden (see Eisenberger v Septimus, 44 AD3d994, 995 [2007]; Shopsin v Siben & Siben, 268 AD2d at 578). The plaintiffsimilarly failed to meet her burden of establishing entitlement to judgment as a matter of law asto the defendants' liability for malpractice since there were triable issues of fact whether shewould have prevailed in the underlying action to recover damages for her injuries (seeTheresa Striano Revocable Trust v Blancato, 71 AD3d at 1123; Eisenberger vSeptimus, 44 AD3d at 995; Avery vSirlin, 26 AD3d 451, 452 [2006]). Accordingly, the Supreme Court properly denied thedefendants' motion and the plaintiff's cross motion for summary judgment. Dillon, J.P.,Angiolillo, Hall and Roman, JJ., concur.