| Smith v Kaplan Belsky Ross Bartell, LLP |
| 2015 NY Slip Op 02108 [126 AD3d 877] |
| March 18, 2015 |
| Appellate Division, Second Department |
[*1]
| Thomas W. Smith et al., Appellants, v KaplanBelsky Ross Bartell, LLP, et al., Respondents. |
Smith, Finkelstein, Lundberg, Isler & Yakaboski, LLP, Riverhead, N.Y. (FrankA. Isler and Jean K. Delisle of counsel), for appellants.
Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y. (Judy C.Selmeci and Ernest Tonorezos of counsel), for respondents.
In an action, inter alia, to recover damages for legal malpractice, the plaintiffs appealfrom an order of the Supreme Court, Nassau County (Bucaria, J.), dated January 23,2013, which granted the defendants' motion for summary judgment dismissing thecomplaint.
Ordered that the order is modified, on the law, by deleting the provision thereofgranting that branch of the defendants' motion which was for summary judgmentdismissing the cause of action alleging legal malpractice, and substituting therefor aprovision denying that branch of the motion; as so modified, the order is affirmed, withcosts to the plaintiffs.
The plaintiffs were former executives of Odyssey Pictures Corporation (hereinafterOdyssey) and members of its Board of Directors. Upon their departure from Odyssey, theplaintiffs were given an agreement pursuant to which Odyssey promised to indemnifythem in future litigation arising out of their tenure with Odyssey. At some pointthereafter, the plaintiffs were sued for actions arising during their tenure with Odyssey.The plaintiffs allegedly evaluated their likelihood of being indemnified by Odyssey andbased their litigation strategy in that action upon their belief that they would beindemnified by Odyssey for their litigation costs. At the end of the litigation againstthem, the plaintiffs sought approximately $455,000 in indemnification from Odyssey, atwhich time the plaintiffs learned that Odyssey did not have the assets portrayed in thefinancial reports prepared by Odyssey's accountants, Want & Ender. In or aboutFebruary 2004, the plaintiffs retained the defendants to prosecute an action against Want& Ender, and in or about April and June 2004, Want & Ender was served witha summons and notice. Want & Ender failed to answer or appear. However, thedefendants did not move for a default judgment in the plaintiffs' favor and against Want& Ender within a year of that default and, instead, moved for that relief about threeyears later. The plaintiffs' action against Want & Ender was ultimately dismissed asabandoned.
The plaintiffs then commenced this action against the defendants, seeking, inter alia,to recover damages for legal malpractice. The defendants moved for summary judgmentdismissing the complaint. The Supreme Court granted the motion, and the plaintiffsappeal.
In order to prevail in an action to recover damages for legal malpractice, a plaintiff[*2]must establish that the defendant attorney failed toexercise the ordinary reasonable skill and knowledge commonly possessed by a memberof the legal profession, and that the breach of this duty proximately caused the plaintiff tosustain actual and ascertainable damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8NY3d 438, 442 [2007]; Aliv Fink, 67 AD3d 935, 936 [2009]). To establish causation, a plaintiff must showthat he or she would have prevailed in the underlying action or would not have incurredany damages but for the attorney's negligence (see Rudolf v Shayne, Dachs, Stanisci,Corker & Sauer, 8 NY3d at 442; Ali v Fink, 67 AD3d at 936). Thedefendants moving for summary judgment dismissing a legal malpractice claim againstthem have the burden of establishing, through the submission of proof in evidentiaryform, that the plaintiff is unable to prove at least one of the essential elements of thecause of action (see Ali v Fink, 67 AD3d at 936; Leone v Silver & Silver,LLP, 62 AD3d 962 [2009]).
We reject the plaintiffs' contention that the Supreme Court erred in considering thedefendants' motion for summary judgment on the merits. Although the defendants failedto annex their answer to their initial moving papers, the problem was rectified when ananswer was annexed to the reply affirmation of their counsel (see CPLR 2001; Avalon Gardens Rehabilitation& Health Care Ctr., LLC v Morsello, 97 AD3d 611 [2012]). The plaintiffssuffered no prejudice, since the Supreme Court considered the plaintiffs' surreply.
The defendants failed to establish their prima facie entitlement to judgment as amatter of law dismissing the cause of action alleging legal malpractice (see Winegradv New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]). While the defendantsargue that the plaintiffs could not have recovered on their action against Want &Ender because the plaintiffs were not in privity or near privity with Want & Ender(see Health Acquisition Corp. vProgram Risk Mgt., Inc., 105 AD3d 1001, 1003 [2013]; Barrett v Freifeld, 64 AD3d736, 738 [2009]), their submissions failed to eliminate all triable issues of fact withrespect to this issue (cf. Security Pac. Bus. Credit v Peat Marwick Main &Co., 79 NY2d 695, 702 [1992]). In support of their motion, the defendantssubmitted, inter alia, the deposition testimony of the plaintiffs, who testified as to whenand how they relied on the improperly prepared financial reports, and explained why theybelieved that the accountants knew or should have known that the plaintiffs would berelying on the prepared financial reports. Since the defendants failed to establish theirprima facie entitlement to judgment as a matter of law dismissing the cause of actionalleging legal malpractice, that branch of the defendants' motion should have beendenied, regardless of the sufficiency of the papers submitted in opposition (seeWinegrad v New York Univ. Med. Ctr., 64 NY2d at 853; Delollis v Margolin, Winer &Evens, LLP, 121 AD3d 830 [2014]).
The Supreme Court, however, properly granted those branches of the defendants'motion which were for summary judgment dismissing the causes of action alleging grossnegligence, breach of contract, and fraud. Those causes of action arose from the samefacts as those underlying the legal malpractice cause of action, and do not allege distinctdamages. Therefore, those causes of action were duplicative of the legal malpracticecause of action (see Biberaj vAcocella, 120 AD3d 1285, 1287 [2014]; Palmieri v Biggiani, 108 AD3d 604, 608 [2013]; Citidress II Corp. v Tokayer,105 AD3d 798, 799 [2013]). Rivera, J.P., Skelos, Roman and Miller, JJ.,concur.