| Barbieri v Fishoff |
| 2012 NY Slip Op 06054 [98 AD3d 703] |
| August 29, 2012 |
| Appellate Division, Second Department |
| Louis Barbieri, Respondent, v Gary Fishoff,Appellant. |
—[*1] Andrew Lavoott Bluestone, New York, N.Y., for respondent.
In an action, inter alia, to recover damages for legal malpractice, the defendant appeals, aslimited by his brief, from so much of an order of the Supreme Court, Dutchess County (Sproat,J.), dated July 1, 2011, as denied that branch of his motion which was for summary judgmentdismissing the cause of action to recover damages for legal malpractice.
Ordered that the order is reversed insofar as appealed from, on the law, with costs, and thatbranch of the defendant's motion which was for summary judgment dismissing the cause ofaction to recover damages for legal malpractice is granted.
The plaintiff hired the defendant attorney on the eve of trial to represent him in an adversaryproceeding in bankruptcy court, in which the plaintiff contended that his signature on a certainreal estate document was forged. At the time he hired the defendant, the plaintiff had alreadysubmitted a pretrial statement to the bankruptcy court indicating that he did not intend to call anyexpert witnesses at trial. At the ensuing trial, the defendant did not adduce evidence from ahandwriting expert. The bankruptcy court subsequently found against the plaintiff, and theplaintiff then commenced this action alleging, inter alia, that the defendant's failure to call ahandwriting expert at the trial constituted legal malpractice. The defendant moved, among otherthings, for summary judgment dismissing the cause of action to recover damages for legalmalpractice, and the Supreme Court denied that branch of the motion.
To succeed in an action to recover damages for legal malpractice, a plaintiff must ultimatelyprove, among other things, that but for the defendant's negligence, he or she would haveprevailed in the underlying action or would not have sustained any damages (see Rudolf v Shayne, Dachs, Stanisci,Corker & Sauer, 8 NY3d 438, 442 [2007]; Kluczka v Lecci, 63 AD3d 796, 797 [2009]). In opposition to thedefendant's prima facie showing on this essential element of a legal malpractice cause of action(see Siciliano v Forchelli &Forchelli, 17 AD3d 343, 345 [2005]), the plaintiff failed to raise a triable issue of factrequiring a trial (see Schadoff v Russ, 278 AD2d 222, 223 [2000]). The plaintiffpresented an affidavit of a legal expert, who merely presented a speculative and conclusoryopinion that the bankruptcy court might have exercised its discretion on the eve of trial to permita [*2]handwriting expert to testify, despite the plaintiff'sindication in his pretrial statement that he did not intend to call any expert witnesses (seeFed Rules Civ Pro rule 26 [a] [2] [D]; rule 37 [c]; see also Fed Rules Bankr Pro rule7026; Design Strategy, Inc. v Davis, 469 F3d 284, 297-298 [2006]). "[M]ere speculationabout a loss resulting from an attorney's alleged omission is insufficient to sustain a prima faciecase of legal malpractice" (Siciliano v Forchelli & Forchelli, 17 AD3d at 345; seeLuniewski v Zeitlin, 188 AD2d 642 [1992]; Marshall v Nacht, 172 AD2d 727[1991]). Thus, the plaintiff, in opposition, failed to raise a triable issue of fact. Accordingly, theSupreme Court should have granted that branch of the defendant's motion which was forsummary judgment dismissing the cause of action alleging legal malpractice (see Crawford vMcBride, 303 AD2d 442 [2003]; Pirro & Monsell v Freddolino, 204 AD2d 613[1994]). Skelos, J.P., Balkin, Leventhal and Austin, JJ., concur.