| Gershkovich v Miller, Rosado & Algios, LLP |
| 2012 NY Slip Op 04318 [96 AD3d 716] |
| June 6, 2012 |
| Appellate Division, Second Department |
| Tibor Gershkovich et al., Respondents, v Miller, Rosado &Algios, LLP, et al., Appellants. |
—[*1] Certilman Balin Adler & Hyman, LLP, East Meadow, N.Y. (Paul B. Sweeney of counsel),for appellant Arthur Welsher. Roman Popik, P.C. (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn], of counsel), forrespondents.
In an action, inter alia, to recover damages for legal malpractice, the defendant Miller,Rosado & Algios, LLP, appeals, as limited by its brief, from so much of an order of the SupremeCourt, Kings County (Schmidt, J.), dated February 15, 2011, as denied that branch of its motionwhich was for summary judgment dismissing the legal malpractice cause of action insofar asasserted by the plaintiffs Tibor Gershkovich and Galina Gershkovich against it, and the defendantArthur Welsher separately appeals, as limited by his brief, from so much of the same order asdenied that branch of his motion which was for summary judgment dismissing the legalmalpractice cause of action insofar as asserted by the plaintiffs Tibor Gershkovich and GalinaGershkovich against him.
Ordered that the order is affirmed insofar as appealed from, with one bill of costs.
In order to prevail in an action to recover damages for legal malpractice, a plaintiff mustestablish that the defendant failed to exercise the ordinary reasonable skill and knowledgecommonly possessed by a member of the legal profession, and that the breach of this dutyproximately caused the plaintiff to sustain actual and ascertainable damages (see Rudolf v Shayne, Dachs, Stanisci,Corker & Sauer, 8 NY3d 438, 442 [2007]; Malik v Beal, 54 AD3d 910, 911 [2008]; Carrasco v Pena & Kahn, 48 AD3d395, 396 [2008]). "To succeed on a motion for summary judgment dismissing the complaintin a legal malpractice action, the defendant must present evidence in admissible formestablishing that the plaintiff is unable to prove at least one essential element of his or her causeof action alleging legal malpractice" (Scartozzi v Potruch, 72 AD3d 787, 789-790 [2010]; see Boglia v Greenberg, 63 AD3d973, 974 [2009]; Carrasco v Pena & Kahn, 48 AD3d at 396).
Here, the Supreme Court properly determined that the defendant Arthur Welsher failed toestablish, prima facie, that the plaintiffs Tibor Gershkovich and Galina Gershkovich (hereinaftertogether the respondents) were unable to prove the essential elements of their legal malpracticecause of action insofar as asserted against that defendant (see Gelobter v Fox, 90 AD3d[*2]829, 831 [2011]; Suppiah v Kalish, 76 AD3d 829, 832 [2010]; Ali v Fink, 67 AD3d 935, 937[2009]; Terio v Spodek, 25 AD3d781, 785 [2006]; see also M & RGinsburg, LLC v Segal, Goldman, Mazzotta & Siegel, P.C., 90 AD3d 1208, 1209[2011]).
The Supreme Court also properly determined that although the defendant Miller, Rosado &Algios, LLP, established its prima facie entitlement to judgment as a matter of law dismissing thelegal malpractice cause of action insofar as asserted by the respondents against it, the respondentsraised triable issues of fact in opposition (see Silva v Worby, Groner, Edelman, LLP, 54 AD3d 634 [2008];see also Conklin v Owen, 72 AD3d1006, 1007 [2010]; Nelson vRoth, 69 AD3d 912, 913 [2010]; Boglia v Greenberg, 63 AD3d at 975; Mourtil v Korman & Stein, P.C., 33AD3d 898, 900 [2006]).
Accordingly, the Supreme Court properly denied those branches of the defendants' motionswhich were for summary judgment dismissing the legal malpractice cause of action insofar asasserted by the respondents against each of them. Dillon, J.P., Eng, Belen and Sgroi, JJ., concur.