Opinion
2004-02562
January 24, 2005.
In an action to recover damages for legal malpractice, the plaintiff appeals from a judgment of the Supreme Court, Suffolk County (Seidell, J.), entered February 11, 2004, which, upon the granting of the defendant's motion pursuant to CPLR 4401 for judgment as a matter of law made at the close of the plaintiff's case, is in favor of the defendant and against him dismissing the complaint.
Before: Santucci, J.P., Luciano, Rivera and Fisher, JJ., concur.
Ordered that the judgment is affirmed, with costs.
The Supreme Court correctly determined that the plaintiff in this action to recover damages for legal malpractice bore the burden of establishing that a hypothetical judgment in the underlying action would have been collectible against the third-party debtor ( see McKenna v. Forsyth Forsyth, 280 AD2d 79, 82-84; see also Vooth v. McEachen, 181 NY 28; Evangelista v. Slatt, 295 AD2d 156; Chiaffi v. Wexler, Bergerman Crucet, 116 AD2d 614, 615; Titsworth v. Mondo, 95 Misc 2d 233, 242-243; Leavy v. Kramer, 34 Misc 2d 479, 480; Schweizer v. Mulvehill, 93 F Supp 2d 376, 396 [applying New York law]; but see Lindenman v. Kreitzer, 7 AD3d 30 ). His failure to establish a prima facie case on the issue of collectibility, even after the Supreme Court granted him leave to reopen his case to do so, warranted the granting of judgment as a matter of law in favor of the defendant.
The parties' remaining contentions are without merit.