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Asher v. Shlimbaum

Appellate Division of the Supreme Court of New York, Second Department
Nov 27, 2007
45 A.D.3d 791 (N.Y. App. Div. 2007)

Opinion

No. 2006-05045.

November 27, 2007.

In an action to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Weber, J.), dated May 3, 2006, which granted the defendants' motion to dismiss the complaint pursuant to CPLR 3211.

Greshin, Ziegler Amicizia, LLP, Smithtown, N.Y. (Matthew H. Bligh of counsel), for appellant.

Babchik Young, LLP, White Plains, N.Y. (Jack Babchik, Matthew J. Rosen, and Jordan Sklar of counsel), for respondents.

Before: Schmidt, J.P., Rivera, Krausman and Florio, JJ., concur.


Ordered that the order is affirmed, with costs.

The Supreme Court properly granted the defendants' motion to dismiss the complaint alleging legal malpractice. The plaintiffs underlying action was commenced to enforce an alleged oral contract between himself and his sister and brother-in-law to convey certain real property from them to him. By order dated September 30, 2004, the Supreme Court found that the plaintiffs actions in connection with the acquisition and maintenance of the property were not unequivocally referable to the alleged contract ( see General Obligations Law § 5-703), and therefore the alleged contract was barred by the statute of frauds and was unenforceable ( see General Obligations Law § 5-703). This was sufficient to show that the plaintiff could not establish that he would have succeeded in the underlying action but for the defendants' failure to plead other legal theories in connection with the underlying action ( see Leder v Spiegel, 9 NY3d 836). Accordingly, the Supreme Court properly granted the defendants motion to dismiss the complaint ( see L S Motors, Inc. v Broadview Networks, Inc., 25 AD3d 767; Dann v King Assoc, 303 AD2d 539; Roth v Goldman, 254 AD2d 405).


Summaries of

Asher v. Shlimbaum

Appellate Division of the Supreme Court of New York, Second Department
Nov 27, 2007
45 A.D.3d 791 (N.Y. App. Div. 2007)
Case details for

Asher v. Shlimbaum

Case Details

Full title:DANIEL W. ASHER, Appellant, v. LARK J. SHLIMBAUM et al., Respondents

Court:Appellate Division of the Supreme Court of New York, Second Department

Date published: Nov 27, 2007

Citations

45 A.D.3d 791 (N.Y. App. Div. 2007)
2007 N.Y. Slip Op. 9351
846 N.Y.S.2d 327

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