| Portilla v Law Offs. of Arcia & Flanagan |
| 2013 NY Slip Op 08606 [112 AD3d 901] |
| December 26, 2013 |
| Appellate Division, Second Department |
| Jesus Portilla, Respondent, v Law Offices of Arcia& Flanagan et al., Appellants, et al., Defendant. |
—[*1] Gregory J. Cannata (Robert A. Grochow, P.C., New York, N.Y., of counsel), forrespondent.
In an action to recover damages for legal malpractice, the defendants Law Offices ofArcia & Flanagan, Law Offices of E. Abel Arcia, and Eloy Abel Arcia appeal from anorder of the Supreme Court, Queens County (J. Golia, J.), dated July 20, 2009, whichdenied their motion for summary judgment dismissing the complaint insofar as assertedagainst them.
Ordered that the order is affirmed, with costs.
In an action to recover damages for legal malpractice, a plaintiff must demonstratethat an attorney failed to exercise the ordinary reasonable skill and knowledge commonlypossessed by a member of the legal profession and that the breach of such duty was theproximate cause of the plaintiff's damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d438, 442 [2007]; Verdi vJacoby & Meyers, LLP, 92 AD3d 771, 772 [2012]; Goldberg v Lenihan, 38 AD3d598 [2007]). Proximate cause is established by showing that the plaintiff would havesucceeded in the underlying action or would not have incurred damages but for theattorney's negligence (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8NY3d at 442). Therefore, for a defendant in a legal malpractice case to succeed on amotion for summary judgment, evidence must be presented in admissible formestablishing that the plaintiff is unable to prove at least one of these essential elements(see Verdi v Jacoby & Meyers, LLP, 92 AD3d at 772; Goldberg vLenihan, 38 AD3d at 598).
Here, the appellants failed to establish their prima facie entitlement to judgment as amatter of law. The appellants, who did not dispute that they were negligent in suing thewrong party, failed to establish, prima facie, that the plaintiff was unable to prove that hewould have succeeded in his underlying personal injury action (see Gamer v Ross, 49 AD3d598 [2008]; J-Mar Serv.Ctr., Inc. v Mahoney, Connor & Hussey, 14 AD3d 482, 483 [2005]).Accordingly, the Supreme Court properly denied the appellants' motion for summaryjudgment dismissing the complaint insofar as asserted against them. Mastro, J.P., Rivera,Leventhal and Chambers, JJ., concur.