| Lever v Roesch |
| 2012 NY Slip Op 08699 [101 AD3d 954] |
| December 19, 2012 |
| Appellate Division, Second Department |
| Mary Ellen Lever, Appellant, v John Thomas Roesch et al.,Respondents. |
—[*1] McElroy, Deutsch, Mulvaney & Carpenter, LLP, New York, N.Y. (Brian W. Keatts and JohnCookson of counsel), for respondents.
In an action to recover damages for legal malpractice, the plaintiff appeals from an order ofthe Supreme Court, Nassau County (McCarty III, J.), entered November 12, 2008, which grantedthe defendants' motion for summary judgment dismissing the complaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is denied.
The plaintiff allegedly sustained personal injuries when she tripped and fell over a hole in theparking lot of a shopping center. She retained the defendants to commence a personal injuryaction on her behalf against Breslin Realty Development Corp. (hereinafter Breslin), the owner ofthe property where she allegedly fell. Thereafter, the Supreme Court granted Breslin's motion forsummary judgment and dismissed the underlying action. Specifically, the Supreme Court foundthat, in opposition to Breslin's prima facie showing of entitlement to judgment as a matter of law,the plaintiff failed to raise a triable issue of fact as to whether Breslin either created or had actualor constructive notice of the alleged defect. The Supreme Court denied the plaintiff's motion forleave to renew and reargue her opposition to Breslin's motion.
The plaintiff subsequently commenced the instant action to recover damages for legalmalpractice, alleging, inter alia, that the defendants failed to timely locate potential noticewitnesses and to properly oppose Breslin's motion for summary judgment, which resulted in thedismissal of the underlying action. The defendants moved for summary judgment dismissing thecomplaint in the instant action, and the Supreme Court granted their motion.
"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] [internal quotation marks omitted]; see Lovino, Inc. v Lavallee Law Offs., 96 AD3d 910, 911-912[2012]; Verdi v Jacoby & Meyers,LLP, 92 AD3d 771, 772 [2012]). "To establish [*2]causation, a plaintiff must show that he or she would have prevailedin the underlying action or would not have incurred any damages, but for the lawyer'snegligence" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442; see Barbieri v Fishoff, 98 AD3d703 [2012]; Board of Mgrs. of BayClub v Borah, Goldstein, Schwartz, Altschuler & Nahins, P.C., 97 AD3d 612, 613[2012]). "To succeed on a motion for summary judgment, the defendant in a legal malpracticeaction must present evidence in admissible form establishing that the plaintiff is unable to proveat least one of these essential elements" (Verdi v Jacoby & Meyers, LLP, 92 AD3d at 772[internal quotation marks omitted]).
Here, the defendants did not establish, prima facie, that the plaintiff will be unable to proveat least one of the elements of legal malpractice, and thus failed to demonstrate their entitlementto judgment as a matter of law (seeAffordable Community, Inc. v Simon, 95 AD3d 1047, 1048 [2012]). Triable issues offact exist, inter alia, as to whether the defendants were negligent in their representation of theplaintiff in the underlying action. In light of our determination, we need not address thesufficiency of the plaintiff's opposition papers (see generally Winegrad v New York Univ.Med. Ctr., 64 NY2d 851, 853 [1985]). Rivera, J.P., Balkin, Leventhal and Chambers, JJ.,concur.