| Guerrera v Zysk |
| 2014 NY Slip Op 05156 [119 AD3d 647] |
| July 9, 2014 |
| Appellate Division, Second Department |
[*1]
| 1 Salvatore Guerrera, Respondent, v Robert J.Zysk, Appellant. |
Robert J. Zysk, Patchogue, N.Y., appellant pro se.
Raymond Grasing, Smithtown, N.Y., for respondent.
In an action, inter alia, to recover damages for legal malpractice, the defendantappeals from an order of the Supreme Court, Suffolk County (Pastoressa, J.), datedNovember 15, 2012, which denied his motion for summary judgment dismissing thecomplaint.
Ordered that the order is modified, on the law, by deleting the provision thereofdenying that branch of the defendant's motion which was for summary judgmentdismissing the fifth cause of action and substituting therefor a provision granting thatbranch of the motion; as so modified, the order is affirmed, without costs ordisbursements.
The plaintiff commenced this action, inter alia, to recover damages for legalmalpractice against the defendant, who served as the plaintiff's defense attorney in anonjury trial in a civil action, commenced in 2003 in the Supreme Court, Suffolk County(hereinafter the 2003 action), and, concomitantly, in connection with a contract of sale ofreal property which was the basis of a specific performance action in 2005 (hereinafterthe 2005 action) before the same court in which the 2003 action had been pending.Thereafter, the defendant moved for summary judgment dismissing the complaint. Themotion was denied and the defendant appeals.
"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" (Portilla v Law Offs. of Arcia & Flanagan, 112 AD3d901, 901 [2013]). " 'To establish causation, a plaintiff must show that he orshe would have prevailed in the underlying action or would not have incurred anydamages, but for the lawyer's negligence' " (Barnave v Davis, 108 AD3d 582, 582 [2013], quoting Rudolf v Shayne, Dachs, Stanisci,Corker & Sauer, 8 NY3d 438, 442 [2007]). " 'To succeed on amotion for summary judgment, the defendant in a legal malpractice action must presentevidence in admissible form establishing that the plaintiff is unable to prove at least oneof these essential elements' " (Affordable Community, Inc. v Simon, 95 AD3d 1047,1048 [2012], quoting Alizio vFeldman, 82 AD3d 804, 804 [2011]).
Here, the defendant established his prima facie entitlement to judgment as a matter oflaw dismissing the plaintiff's fifth cause of action to recover damages for legalmalpractice based on the defendant's alleged failure to convey a settlement offer to theplaintiff during the 2003 action. [*2]In support of themotion, the defendant submitted a transcript of his deposition, wherein he testified thathe was never informed as to the existence of a settlement offer in the 2003 action, and atranscript of the plaintiff's deposition, wherein the plaintiff testified that he had nopersonal knowledge of the existence of a settlement offer and had heard about it throughstatements made to him by others.
In opposition, the plaintiff failed to raise a triable issue of fact, as the only evidencesubmitted to show that a settlement offer was communicated to the defendant consistedof hearsay statements. Such evidence, standing alone, is insufficient to defeat thedefendant's motion for summary judgment on this cause of action (see Mauskopf v 1528 OwnersCorp., 102 AD3d 930, 931-932 [2013]; Mallen v Farmingdale Lanes, LLC, 89 AD3d 996 [2011];Rodriguez v Sixth President, 4 AD3d 406 [2004]). Accordingly, the SupremeCourt should have granted that branch of the defendant's motion which was for summaryjudgment dismissing the fifth cause of action.
However, the defendant failed to establish his prima facie entitlement to judgment asa matter of law dismissing the remaining causes of action (see Alvarez v ProspectHosp., 68 NY2d 320, 324 [1986]; Kutner v Catterson, 56 AD3d 437, 438 [2008];Fireman's Fund Ins. Co. v Farrell, 289 AD2d 286, 288 [2001]), and we need notreview the sufficiency of the plaintiff's opposition concerning those causes of action(see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]).
The parties' remaining contentions either are without merit or need not be reached inlight of our determination.
Accordingly, except as to the fifth cause of action, the Supreme Court properlydenied the defendant's motion for summary judgment dismissing the complaint.Chambers, J.P., Austin, Hinds-Radix and Duffy, JJ., concur.