Opinion
2012-02-14
Sally SCHURZ, appellant, v. Martin H. BODIAN, et al., respondents.
Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C., Mineola, N.Y. (Mark R. Bernstein of counsel), for appellant. L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (William T. McCaffery of counsel), for respondents.
Sanders, Sanders, Block, Woycik, Viener & Grossman, P.C., Mineola, N.Y. (Mark R. Bernstein of counsel), for appellant. L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (William T. McCaffery of counsel), for respondents.
REINALDO E. RIVERA, J.P., RANDALL T. ENG, SHERI S. ROMAN, and SANDRA L. SGROI, JJ.
In an action to recover damages for legal malpractice, the plaintiff appeals, (1) as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Marber, J.), entered October 12, 2010, as granted that branch of the defendants' motion which was for summary judgment dismissing the complaint, and (2) from a judgment of the same court dated October 29, 2010, which, upon the order, is in favor of the defendants and against her, dismissing the complaint.
ORDERED that the appeal from the order is dismissed; and it is further,
ORDERED that the judgment is affirmed; and it is further,
ORDERED that one bill of costs is awarded to the defendants.
The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action ( see Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on the appeal from the order are brought up for review and have been considered on the appeal from the judgment ( see CPLR 5501[a] [1] ).
“To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney ‘failed to exercise the ordinarily reasonable skill and knowledge commonly possessed by a member of the legal profession’; and (2) that the attorney's breach of the duty proximately caused the plaintiff actual and ascertainable damages” ( Dempster v. Liotti, 86 A.D.3d 169, 176, 924 N.Y.S.2d 484, quoting Leder v. Spiegel, 9 N.Y.3d 836, 837, 840 N.Y.S.2d 888, 872 N.E.2d 1194, cert. denied sub nom. Spiegel v. Rowland, 552 U.S. 1257, 128 S.Ct. 1696, 170 L.Ed.2d 354). “ ‘To establish the element of causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages but for the attorney's negligence’ ” ( Marino v. Lipsitz, Green, Fahringer, Roll, Salibury & Cambria, LLP, 87 A.D.3d 566, 566, 928 N.Y.S.2d 462, quoting Snolis v. Clare, 81 A.D.3d 923, 925, 917 N.Y.S.2d 299). On a motion for summary judgment in the legal malpractice context, the defendant must “demonstrate that the plaintiff is unable to prove at least one of the essential elements of a legal malpractice cause of action” ( Greene v. Sager, 78 A.D.3d 777, 779, 910 N.Y.S.2d 546). If the defendant makes such a prima facie showing, the burden then shifts to the plaintiff to raise an issue of fact necessitating a trial ( see Marino v. Lipsitz, Green, Fahringer, Roll, Salibury & Cambria, LLP, 87 A.D.3d at 567, 928 N.Y.S.2d 462; Siciliano v. Forchelli & Forchelli, 17 A.D.3d 343, 345, 793 N.Y.S.2d 102).
Here, the defendants established their prima facie entitlement to judgment as a matter of law by demonstrating that the plaintiff was unable to prove that she would have prevailed in the underlying action but for the defendants' alleged negligence ( see generally Zelenaya v. Rosengarten, 301 A.D.2d 519, 520, 753 N.Y.S.2d 116). In opposition, the plaintiff failed to raise a triable issue of fact ( see Levinstim v. Parker, 27 A.D.3d 698, 815 N.Y.S.2d 596; see also Molina v. State of New York, 46 A.D.3d 642, 848 N.Y.S.2d 659; Williams v. Wal–Mart Stores, Inc., 10 A.D.3d 653, 781 N.Y.S.2d 698). Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint ( see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572).