| Barnave v Davis |
| 2013 NY Slip Op 05184 [108 AD3d 582] |
| July 10, 2013 |
| Appellate Division, Second Department |
| Leslie Barnave, Appellant, v Tarik Davis,Respondent. |
—[*1] Tarik Davis, Brooklyn, N.Y., respondent pro se.
In an action to recover damages for legal malpractice, the plaintiff appeals from anorder of the Supreme Court, Queens County (Weiss, J.), entered April 9, 2012, 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 motionfor summary judgment dismissing the complaint is denied.
"In an action to recover damages for legal malpractice, a plaintiff must demonstratethat the attorney 'failed to exercise the ordinary reasonable skill and knowledgecommonly possessed by a member of the legal profession' and that the attorney's breachof this duty proximately caused plaintiff 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 Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d812 [2013]). "To establish causation, a plaintiff must show that he or she wouldhave prevailed in the underlying action or would not have incurred any damages, but forthe lawyer's negligence" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8NY3d at 442; see Davis v Klein, 88 NY2d 1008, 1009-1010 [1996]; Carmelv Lunney, 70 NY2d 169, 173 [1987]; Keness v Feldman, Kramer &Monaco, P.C., 105 AD3d at 813). " 'To succeed on a motion for summary judgment,the defendant in a legal malpractice action must present evidence in admissible formestablishing that the plaintiff is unable to prove at least one of these essential elements' "(Affordable Community, Inc. vSimon, 95 AD3d 1047, 1048 [2012], quoting Alizio v Feldman, 82 AD3d804, 804 [2011]; see Bey vFlushing Hosp. Med. Ctr., 95 AD3d 1152, 1153 [2012]; Eisenberger v Septimus, 44AD3d 994, 995 [2007]).
Here, contrary to the Supreme Court's determination, the defendant failed to establishhis prima facie entitlement to judgment as a matter of law dismissing the complaint. As aresult of the plaintiff's counsel's failure to appear at a scheduled compliance conferencein the underlying action, the underlying action was ultimately dismissed. Contrary to thedefendant's contention, the evidence he submitted in the present action in support of hismotion for summary judgment dismissing the complaint did not establish, prima facie,that he no longer represented the plaintiff at the time of that default. The defendantacknowledged in an affidavit submitted in support of his motion that, after the default, heassisted the plaintiff in his efforts to have the underlying action [*2]restored to the calendar, stating, inter alia, that he "use[d]law office failure as the reason [he] did not appear" on behalf of the plaintiff in theunderlying action. Therefore, the defendant failed to establish, prima facie, that theplaintiff could not prove breach of duty based on the alleged failure to appear.Furthermore, contrary to his contention, the defendant failed to establish, prima facie,that the plaintiff's conduct negated any negligence by the defendant and constituted thesole proximate cause of the dismissal of the underlying action. Accordingly, thedefendant's submissions in support of his motion for summary judgment did notestablish, prima facie, that the plaintiff will be unable to prove at least one element of hislegal malpractice claim and, thus, the defendant failed to demonstrate his entitlement tojudgment as a matter of law (see Affordable Community, Inc. v Simon, 95 AD3dat 1048; Mueller v Fruchter,71 AD3d 650, 651 [2010]; Rosenstrauss v Jacobs & Jacobs, 56 AD3d 453, 454[2008]). In light of our determination, we need not address the sufficiency of theplaintiff's opposition papers (see Affordable Community, Inc. v Simon, 95 AD3dat 1048; see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d 851,853 [1985]).
Accordingly, the Supreme Court should have denied the defendant's motion forsummary judgment dismissing the complaint. Dickerson, J.P., Roman, Miller andHinds-Radix, JJ., concur.