| Bells v Foster |
| 2011 NY Slip Op 03195 [83 AD3d 876] |
| April 19, 2011 |
| Appellate Division, Second Department |
| Loukricia Bells, Also Known as Loukricia Edwards,Respondent, v Kharl A. Foster, Appellant. |
—[*1] Salzman & Salzman, LLP, Brooklyn, N.Y. (Richard Salzman of counsel), forrespondent.
In an action to recover damages for legal malpractice, the defendant appeals from an order ofthe Supreme Court, Kings County (Schack, J.), dated April 9, 2010, which granted the plaintiff'smotion for summary judgment on the issue of liability and denied his cross motion for summaryjudgment dismissing the complaint.
Ordered that the order is modified, on the law, by deleting the provision thereof granting theplaintiff's motion for summary judgment on the issue of liability and substituting therefor aprovision denying the plaintiff's motion; as so modified, the order is affirmed, without costs ordisbursements.
The plaintiff, as purchaser, entered into a contract for the sale of certain real property. Underthe terms of that contract, she was afforded 45 days to secure a mortgage. In the event that shewas unable to do so, she was entitled to cancel the contract prior to the expiration of the 45-dayperiod and recover her down payment. The plaintiff retained the defendant, an attorney, torepresent her in the real estate transaction. Ultimately, the sale was not consummated. It isundisputed that the defendant did not cancel the contract of sale on the plaintiff's behalf withinthe required time period, which had been extended on the consent of the contracting parties. As aresult, the seller retained the plaintiff's down payment as liquidated damages. The plaintiffretained new counsel and commenced an action against the sellers to recover her down payment.That action resulted in a settlement, pursuant to which the plaintiff recovered less than the fullamount of her down payment. The plaintiff then commenced this action to recover damages forlegal malpractice. After the defendant joined issue, the plaintiff moved for summary judgment onthe issue of liability, asserting that the defendant's failure to timely cancel the contract of sale onher behalf constituted legal malpractice as a matter of law. The defendant opposed the plaintiff'smotion, and cross-moved for summary judgment dismissing the complaint, asserting, amongother things, that the plaintiff, by her own admission, was in breach of the contract of sale, andher own actions were the sole proximate cause of her damages. The Supreme Court granted theplaintiff's motion and denied the defendant's cross motion.
" 'In an action to recover damages for legal malpractice, a plaintiff must demonstrate [*2]that the attorney failed to exercise the ordinary reasonable skill andknowledge commonly possessed by a member of the legal profession and that the attorney'sbreach of this duty proximately caused plaintiff to sustain actual and ascertainable damages' " (Bilin v Segal, Goodman & Goodman,LLP, 81 AD3d 680, 682 [2011] [internal quotation marks omitted], quoting Rudolf v Shayne, Dachs, Stanisci, Corker& Sauer, 8 NY3d 438, 442 [2007]; see McCoy v Feinman, 99 NY2d 295, 301[2002]). "To establish causation, 'a plaintiff must show that he or she would have prevailed in theunderlying action or would not have incurred any damages, but for the lawyer's negligence' " (Kennedy v H. Bruce Fischer, Esq.,P.C., 78 AD3d 1016, 1018 [2010], quoting Rudolf v Shayne, Dachs, Stanisci, Corker& Sauer, 8 NY3d at 442).
Here, the plaintiff failed to establish her prima facie entitlement to judgment as a matter oflaw because she failed to demonstrate that any negligence on the defendant's part in failing totimely cancel the contract of sale on her behalf was the sole proximate cause of her damages (see Snolis v Clare, 81 AD3d 923[2011]; see also Selletti v Liotti, 22AD3d 739 [2005]; compare Logalbo v Plishkin, Rubano & Baum, 163 AD2d 511[1990]). Accordingly, the Supreme Court erred in granting the plaintiff's motion for summaryjudgment on the issue of liability.
The Supreme Court properly denied the defendant's cross motion for summary judgmentdismissing the complaint. The defendant failed to make a prima facie showing of his entitlementto judgment as a matter of law since he failed to show that the plaintiff was unable to prove atleast one of the essential elements of her legal malpractice cause of action (see Mueller v Fruchter, 71 AD3d650, 651 [2010]; Velie v Ellis Law,P.C., 48 AD3d 674, 675 [2008]; Pedro v Walker, 46 AD3d 789, 790 [2007]; Eisenberger v Septimus, 44 AD3d994, 995 [2007]; Shopsin v Siben & Siben, 268 AD2d 578, 578-579 [2000]).Covello, J.P., Angiolillo, Dickerson and Roman, JJ., concur.