Opinion
745 CA 18–00069
06-15-2018
Julie L. MURRAY, Plaintiff–Appellant, v. Howard S. LIPMAN, Esq., and Fine, Olin & Anderman, LLP, Defendants–Respondents.
DEMARIE & SCHOENBORN, P.C., BUFFALO (JOSEPH DEMARIE OF COUNSEL), FOR PLAINTIFF–APPELLANT. FINE OLIN & ANDERMAN LLP, NEWBURGH (JAMES W. SHUTTLEWORTH, III, OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
DEMARIE & SCHOENBORN, P.C., BUFFALO (JOSEPH DEMARIE OF COUNSEL), FOR PLAINTIFF–APPELLANT.
FINE OLIN & ANDERMAN LLP, NEWBURGH (JAMES W. SHUTTLEWORTH, III, OF COUNSEL), FOR DEFENDANTS–RESPONDENTS.
PRESENT: CENTRA, J.P., PERADOTTO, LINDLEY, DEJOSEPH, AND CURRAN, JJ.
MEMORANDUM AND ORDERIt is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.
Memorandum: Plaintiff commenced this legal malpractice action seeking damages based on defendants' representation of her in matters involving workers' compensation. Defendants moved for summary judgment dismissing the complaint, and Supreme Court granted the motion. We affirm. In order to establish their entitlement to judgment as a matter of law, defendants had to present evidence in admissible form establishing that plaintiff is "unable to prove at least one necessary element of the legal malpractice action" ( Giardina v. Lippes, 77 A.D.3d 1290, 1291, 909 N.Y.S.2d 602 [4th Dept. 2010], lv denied 16 N.Y.3d 702, 2011 WL 135242 [2011] ), e.g., " ‘that the defendant attorney failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community’ " ( Phillips v. Moran & Kufta, P.C., 53 A.D.3d 1044, 1044–1045, 862 N.Y.S.2d 875 [4th Dept. 2008] ). Here, defendants met their initial burden on the motion with respect to that element (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). To the extent that plaintiff alleged a violation of the Rules of Professional Conduct ( 22 NYCRR 1200.0 ) in opposition to defendants' motion, we note that "such an alleged violation does not, without more, support a malpractice claim" ( Cohen v. Kachroo, 115 A.D.3d 512, 513, 981 N.Y.S.2d 711 [1st Dept. 2014] ). Inasmuch as plaintiff did not submit an expert's affidavit "delineating the appropriate ‘standard of professional care and skill’ to which defendants were required to adhere under the circumstances present here," she failed to raise an issue of fact concerning defendants' compliance with the applicable standard of care ( Zeller v. Copps, 294 A.D.2d 683, 684, 741 N.Y.S.2d 343 [3d Dept. 2002] ; see Merlin Biomed Asset Mgt., LLC v. Wolf Block Schorr & Solis–Cohen LLP, 23 A.D.3d 243, 243, 803 N.Y.S.2d 552 [1st Dept. 2005] ; see also Zeller v. Copps, 294 A.D.2d 683, 684–685, 741 N.Y.S.2d 343 [3d Dept. 2002] ).