| Verdi v Jacoby & Meyers, LLP |
| 2012 NY Slip Op 01243 [92 AD3d 771] |
| February 14, 2012 |
| Appellate Division, Second Department |
| Michael C. Verdi, Respondent, v Jacoby & Meyers, LLP, etal., Appellants. |
—[*1] Sobel, Ross, Fliegel & Stieglitz LLP, New York, N.Y. (Michael P. Stieglitz of counsel), forrespondent.
In an action to recover damages for legal malpractice, the defendants appeal, as limited bytheir brief, from (1) so much of an order of the Supreme Court, Nassau County (Murphy, J.),dated December 1, 2010, as denied their motion for summary judgment dismissing thecomplaint, and (2) so much of an order of the same court dated March 24, 2011, as, in effect,upon reargument, adhered to so much of the order dated December 1, 2010, as denied theirmotion for summary judgment dismissing the complaint.
Ordered that the appeal from the order dated December 1, 2010, is dismissed, as the portionof the order appealed from was superseded by so much of the order dated March 24, 2011, as, ineffect, upon reargument, adhered to the original determination denying the defendants' motion forsummary judgment dismissing the complaint; and it is further,
Ordered that the order dated March 24, 2011, is affirmed insofar as appealed from; and it isfurther,
Ordered that one bill of costs is awarded to the plaintiff.
"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 causedplaintiff to sustain actual and ascertainable damages" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438,442 [2007], quoting McCoy v Feinman, 99 NY2d 295, 301-302 [2002]; see Bells v Foster, 83 AD3d 876[2011]). "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"(Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442; see Bells v Foster, 83 AD3d 876[2011]). "To succeed on a motion for summary judgment, [*2]thedefendant in a legal malpractice action must present evidence in admissible form establishingthat the plaintiff is unable to prove at least one of these essential elements" (Alizio v Feldman, 82 AD3d 804,804 [2011]).
The Supreme Court properly, in effect, upon reargument, adhered to its originaldetermination denying the defendants' motion for summary judgment dismissing the complaint,since the defendants failed to make the requisite showing of their prima facie entitlement tojudgment as a matter of law (see Bells vFoster, 83 AD3d 876 [2011]; Alizio v Feldman, 82 AD3d 804 [2011]; Ippolito vMcCormack, Damiani, Lowe & Mellon, 265 AD2d 303 [1999]; Ostriker v Taylor, Atkins& Ostrow, 258 AD2d 572 [1999]). Dillon, J.P., Florio, Chambers and Roman, JJ., concur.[Prior Case History: 2010 NY Slip Op 33528(U).]