Opinion
2015-05484. Index No. 17259/11.
06-28-2017
Sheldon SEIDMAN, respondent, v. EINIG & BUSH, LLP, et al., appellants.
Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, NY (Jonathan R. Harwood and J. Patrick Carley III of counsel), for appellants. Berg & David, PLLC, Brooklyn, NY (Abraham David of counsel), for respondent.
Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, NY (Jonathan R. Harwood and J. Patrick Carley III of counsel), for appellants.
Berg & David, PLLC, Brooklyn, NY (Abraham David of counsel), for respondent.
RANDALL T. ENG, P.J., JOHN M. LEVENTHAL, LEONARD B. AUSTIN, and JEFFREY A. COHEN, JJ.
In an action to recover damages for legal malpractice, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated March 2, 2015, as denied their motion for summary judgment dismissing the complaint.
ORDERED that the order is affirmed insofar as appealed from, with costs.
"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" ( Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385, quoting McCoy v. Feinman, 99 N.Y.2d 295, 301, 755 N.Y.S.2d 693, 785 N.E.2d 714 ). "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" ( Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d at 442, 835 N.Y.S.2d 534, 867 N.E.2d 385 ). "For a defendant in a legal malpractice action to succeed on a motion for summary judgment, evidence must be submitted in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements" ( Shopsin v. Siben & Siben, 268 A.D.2d 578, 578, 702 N.Y.S.2d 610 ; see Eisenberger v. Septimus, 44 A.D.3d 994, 845 N.Y.S.2d 102 ).
Here, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint (see Rosenstrauss v. Jacobs & Jacobs, 56 A.D.3d 453, 454, 866 N.Y.S.2d 757 ; Velie v. Ellis Law, P.C., 48 A.D.3d 674, 675, 854 N.Y.S.2d 137 ; Pedro v. Walker, 46 A.D.3d 789, 790, 847 N.Y.S.2d 666 ). The defendants failed to make a prima facie showing of their entitlement to judgment as a matter of law since they failed to show that the plaintiff was unable to prove at least one of the essential elements of his legal malpractice cause of action (see Rosenstrauss v. Jacobs & Jacobs, 56 A.D.3d at 454, 866 N.Y.S.2d 757 ; Velie v. Ellis Law, P.C., 48 A.D.3d at 675, 854 N.Y.S.2d 137 ; Pedro v. Walker, 46 A.D.3d at 790, 847 N.Y.S.2d 666 ). Thus, we need not address the sufficiency of the opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).