Opinion
2013-04113
12-24-2014
Chris BIVONA, et al., respondents, v. DANNA & ASSOCIATES, P.C., et al., appellants (and a third-party action).
Winget, Spadafora & Schwartzberg, LLP, New York, N.Y. (Melissa Morais and Dianna D. McCarthy of counsel), for appellants.
Winget, Spadafora & Schwartzberg, LLP, New York, N.Y. (Melissa Morais and Dianna D. McCarthy of counsel), for appellants.
MARK C. DILLON, J.P., THOMAS A. DICKERSON, JOHN M. LEVENTHAL, and L. PRISCILLA HALL, JJ.
Opinion In an action to recover damages for legal malpractice, the defendants appeal from an order of the Supreme Court, Richmond County (Minardo, J.), dated January 17, 2013, which denied their motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed, without costs or disbursements.
“ ‘In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages' ” ( Lever v. Roesch, 101 A.D.3d 954, 955, 957 N.Y.S.2d 354, quoting Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385 ; see Lovino, Inc. v. Lavallee Law Offs., 96 A.D.3d 910, 911–912, 948 N.Y.S.2d 303 ; Verdi v. Jacoby & Meyers, LLP, 92 A.D.3d 771, 772, 938 N.Y.S.2d 806 ). “ ‘To establish 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 lawyer's negligence’ ” (Lever v. Roesch, 101 A.D.3d at 955, 957 N.Y.S.2d 354, quoting Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d at 442, 835 N.Y.S.2d 534, 867 N.E.2d 385 ; see Barbieri v. Fishoff, 98 A.D.3d 703, 704, 950 N.Y.S.2d 384 ; Board of Mgrs. of Bay Club v. Borah, Goldstein, Schwartz, Altschuler & Nahins, P.C., 97 A.D.3d 612, 613, 948 N.Y.S.2d 347 ). “ ‘To succeed on a motion for summary judgment, the defendant in a legal malpractice action must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements' ” (Lever v. Roesch, 101 A.D.3d at 955, 957 N.Y.S.2d 354, quoting Verdi v. Jacoby & Meyers, LLP, 92 A.D.3d at 772, 938 N.Y.S.2d 806 ).
Here, the defendants did not establish, prima facie, that the plaintiffs will be unable to prove at least one of the elements of legal malpractice (see Gershkovich v. Miller, Rosado & Algios, LLP, 96 A.D.3d 716, 717, 945 N.Y.S.2d 567 ; Bey v. Flushing Hosp. Med. Ctr., 95 A.D.3d 1152, 1153, 945 N.Y.S.2d 128 ). The defendants could not sustain their burden merely by pointing out gaps in the plaintiffs' proof (see Kempf v. Magida, 116 A.D.3d 736, 736, 982 N.Y.S.2d 916 ; Alizio v. Feldman, 82 A.D.3d 804, 805, 918 N.Y.S.2d 218 ). Accordingly, contrary to the defendants' contention, the Supreme Court properly denied their motion for summary judgment dismissing the complaint.
The defendants' remaining contention is without merit.