Opinion
2012-12-6
Eric FRANKEL, etc., Plaintiff–Respondent, v. VERNON & GINSBURG, LLP, et al., Defendants–Appellants.
Gordon & Rees, LLP, New York (Bran C. Noonan of counsel), for appellants. Heller, Horowitz & Feit, P.C., New York (Maurice W. Heller of counsel), for respondent.
Gordon & Rees, LLP, New York (Bran C. Noonan of counsel), for appellants. Heller, Horowitz & Feit, P.C., New York (Maurice W. Heller of counsel), for respondent.
TOM, J.P., MAZZARELLI, MOSKOWITZ, ABDUS–SALAAM, JJ.
Order, Supreme Court, New York County (Paul G. Feinman, J.), entered on or about October 20, 2011, which, insofar as appealed from as limited by the briefs, denied defendants' motion for summary judgment insofar as it sought dismissal of plaintiff's first cause of action, for legal malpractice, unanimously affirmed, without costs.
The IAS court properly declined to dismiss the legal malpractice cause of action. Defendants failed to sustain their burden on summary judgment of demonstrating that plaintiff would be unable to prove one of the essential elements of his claim ( see Sabalza v. Salgado, 85 A.D.3d 436, 924 N.Y.S.2d 373 [1st Dept.2011] ). On the contrary, the record demonstrated that plaintiff's decedent had viable causes of action for breach of the warranty of habitability and nuisance against defendants in the underlying action ( see 61 W. 62 Owners Corp. v. CGM EMP LLC, 77 A.D.3d 330, 906 N.Y.S.2d 549 [1st Dept.2010],affd. in part, mod. in part16 N.Y.3d 822, 921 N.Y.S.2d 184, 946 N.E.2d 172 [2011];Misra v. Yedid, 37 A.D.3d 284, 285, 831 N.Y.S.2d 40 [1st Dept.2007] ). Furthermore, the record demonstrated that plaintiff's decedent might have recovered legal fees, which alone exceeded the amount of the settlement in this matter (Real Property Law § 234).
In light of the foregoing, we need not reach defendants' remaining contentions.