| Alizio v Feldman |
| 2011 NY Slip Op 01776 [82 AD3d 804] |
| March 8, 2011 |
| Appellate Division, Second Department |
| Joseph Alizio et al., Respondents, v Richard B. Feldman etal., Appellants. |
—[*1] Jeffrey Levitt, Massapequa, N.Y., for respondents.
In an action, inter alia, to recover damages for legal malpractice, the defendants appeal froman order of the Supreme Court, Nassau County (Brandveen, J.), entered March 19, 2010, whichdenied their motion for summary judgment dismissing the complaint.
Ordered that the order is modified, on the law, by deleting the provisions thereof denyingthose branches of the defendants' motion which were for summary judgment dismissing so muchof the second, fourth, and sixth causes of action as sought declaratory relief, and so much of thefirst, third, and fifth causes of action as alleged breach of contract, and substituting thereforprovisions granting those branches of the defendants' motion; as so modified, the order isaffirmed, without costs or disbursements.
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 by amember of the legal profession and that the attorney's breach of this duty proximately caused theplaintiff to sustain actual and ascertainable damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d438, 442 [2007]). "To establish causation, a plaintiff must show that he or she would haveprevailed in the underlying action or would not have incurred any damages, but for the lawyer'snegligence" (id.). To succeed on a motion for summary judgment, the defendant in a legalmalpractice action must present evidence in admissible form establishing that the plaintiff isunable to prove at least one of these essential elements (see Lichtenstein v Barenbaum, 23 AD3d 440, 440 [2005]). Here,the defendants failed to make a prima facie showing of their entitlement to judgment as a matterof law (see Mueller v Fruchter, 71AD3d 650, 651 [2010]). It was the defendants' burden, as the parties moving for summaryjudgment, to demonstrate affirmatively the merit of their defense, which cannot be sustained bypointing out gaps in the plaintiffs' proof (see Gamer v Ross, 49 AD3d 598, 600 [2008]; Mennerich v Esposito, 4 AD3d399, 400 [2004]; cf. Brady vBisogno & Meyerson, 32 AD3d 410 [2006]). Accordingly, the Supreme Court properlydenied those branches of the defendants' motion which were for summary judgment dismissingthe causes of action alleging legal malpractice.
However, the Supreme Court should have granted those branches of the defendants' [*2]motion which were for summary judgment dismissing so much ofthe first, third, and fifth causes of actions as alleged breach of contract as duplicative of thecauses of action alleging legal malpractice, as they arose from the same facts and do not allegedistinct damages (see Financial Servs.Veh. Trust v Saad, 72 AD3d 1019, 1020 [2010]; Town of Wallkill v Rosenstein, 40 AD3d 972, 974 [2007]). Inaddition, the Supreme Court should have granted those branches of the defendants' motion whichwere for summary judgment dismissing so much of the second, fourth, and sixth causes of actionas sought declaratory relief. Declaratory relief is inappropriate since the plaintiffs have anadequate alternative remedy in the form of a cause of action alleging legal malpractice (seeBGW Dev. Corp. v Mount Kisco Lodge No. 1552 of Benevolent & Protective Order of Elks ofU.S. of Am., 247 AD2d 565, 568 [1998]; Apple Records v Capitol Records, 137AD2d 50, 54 [1988]).
The parties' remaining contentions are without merit. Angiolillo, J.P., Chambers, Roman andMiller, JJ., concur.