Opinion
May 7, 1999
Appeals from Order of Supreme Court, Onondaga County, Elliott, J. — Summary Judgment.
Present — Green, J. P., Pine, Wisner, Scudder and Callahan, JJ.
Order unanimously modified on the law and as modified affirmed without costs in accordance with the following Memorandum: Supreme Court properly denied plaintiff's motion for partial summary judgment on liability in this action for legal malpractice. Plaintiff failed to establish its entitlement to judgment in its favor as a matter of law by the submission of evidentiary proof demonstrating the absence of any material issue of fact ( see generally, Zuckerman v. City of New York, 49 N.Y.2d 557, 562). The court erred, however, in denying defendants' cross motion for summary judgment dismissing the complaint. A cause of action for legal malpractice requires proof that the attorney "`failed to exercise that degree of care, skill and diligence commonly possessed and exercised by an ordinary member of the legal community, that such negligence was the proximate cause of the actual damages sustained by [plaintiff], and that but for the [attorney's] negligence, [plaintiff] would have been successful in the underlying action'" ( Lavin Kleiman v. Heinike Assocs., 221 A.D.2d 919, quoting Logalbo v. Plishkin, Rubano Baum, 163 A.D.2d 511, 513, lv dismissed 77 N.Y.2d 940). Defendants submitted expert proof establishing that plaintiff would have been unsuccessful in any patent infringement action, and plaintiff, in opposition to the cross motion, failed to raise a triable issue of fact. Thus, we modify the order by granting defendants' cross motion and dismissing the complaint.