| Affordable Community, Inc. v Simon |
| 2012 NY Slip Op 03789 [95 AD3d 1047] |
| May 15, 2012 |
| Appellate Division, Second Department |
| Affordable Community, Inc., Appellant, v Alan M. Simon,Respondent. |
—[*1] The McDonough Law Firm, LLP, New Rochelle, N.Y. (Howard S. Jacobowitz of counsel),for respondent.
In an action to recover damages for legal malpractice, the plaintiff appeals from an order ofthe Supreme Court, Westchester County (O. Bellantoni, J.), dated February 10, 2011, whichgranted the defendant's motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendant's motion forsummary judgment dismissing the complaint is denied.
"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] [internalquotation marks omitted]; see Bells vFoster, 83 AD3d 876 [2011]). "To establish causation, a plaintiff must show that he orshe would have prevailed in the underlying action or would not have incurred any damages, butfor the lawyer's negligence" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3dat 442; see Bells v Foster, 83 AD3d876 [2011]). "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" (Alizio v Feldman, 82 AD3d 804, 804 [2011]; see Eisenberger v Septimus, 44 AD3d994 [2007]).
The defendant here is an attorney who represented the plaintiff in a lawsuit asserted againstthe plaintiff by an individual who was injured at a construction site owned by the plaintiff. In thislegal malpractice action, the defendant alleged that the plaintiff limited him to presenting onlycertain unsuccessful defense arguments in the course of representation. However, the defendant'sown evidence raised a triable issue of fact regarding this allegation. Consequently, there remaintriable issues of fact as to whether the defendant negligently failed to present viable defenses inthe underlying action and if so, whether, as a result of such failure, the plaintiff incurred liabilityfor damages in that lawsuit. Accordingly, the defendant's submissions in support of his motionfor [*2]summary judgment did not establish, prima facie, that theplaintiff will be unable to prove the elements of legal malpractice and, thus, he failed todemonstrate his entitlement to judgment as a matter of law (see Mueller v Fruchter, 71 AD3d 650, 651 [2010]; Rosenstrauss v Jacobs & Jacobs, 56AD3d 453, 454 [2008]). In light of our determination, we need not address the sufficiency ofthe plaintiff's opposition papers (seeScott v Gresio, 90 AD3d 736, 737 [2011]; see generally Winegrad v New YorkUniv. Med. Ctr., 64 NY2d 851, 853 [1985]).
The parties' remaining contentions are without merit.
Accordingly, the Supreme Court should have denied the defendant's motion for summaryjudgment dismissing the complaint. Dillon, J.P., Florio, Lott and Sgroi, JJ., concur.