Opinion
Argued May 6, 1999
June 21, 1999
In an action to recover damages for legal malpractice, (1) the defendants McCullough, Goldberger, Staudt, formerly known as Taylor, McCullough, Goldberger, Geoghegan Friedman, Frank S. McCullough, Jr., Charles S. Goldberger, John A. Geoghegan, James Staudt, and S. William Friedman appeal, as limited by their brief, from so much of an order of the Supreme Court, Westchester County (Nastasi, J.), dated October 20, 1998, as denied their motion for summary judgment dismissing the complaint insofar as asserted against them, and (2) the defendants O'Connor, McGuinness, Conte, Doyle, Oleson Collins, Rocco Conte, Dennis T. Doyle, William S. Oleson, J. Peter Collins, Richard C. Oleson, Dennis L. O'Connor, Jr., William R. Watson, and Kevin M. Loftus appeal, as limited by their brief, from so much of the same order as denied their motion for partial summary judgment dismissing the first and second causes of action insofar as asserted against them.
Steinberg Cavaliere, LLP, White Plains, N.Y. (Kevin F. Cavaliere of counsel), for appellants McCullough, Goldberger Staudt, f/k/a Taylor, McCullough, Golberger, Geoghegan Friedman, Frank S. McCullough, Jr., Charles S. Goldberger, John A. Geoghegan, James Staudt, and S. William Friedman.
Wilson, Elser, Moskowitz, Edelman Dicker, LLP, New York, N Y (Thomas A. Leghorn and Brett A. Scher of counsel), for appellants O'Connor, McGuinness, Conte, Doyle, Oleson Collins, Rocco Conte, Dennis T. Doyle, William S. Oleson, J. Peter Collins, Richard C. Oleson, Dennis L. O'Connor, Jr., William R. Watson, and Kevin M. Loftus.
Banks Gruen Shapiro Gettinger, LLP, Mount Kisco, N.Y. (Mona D. Shapiro of counsel), for respondents.
SONDRA MILLER, J.P., GLORIA GOLDSTEIN, SANDRA J. FEUERSTEIN, NANCY E. SMITH, JJ.
DECISION ORDER
ORDERED that the order is modified by deleting the provisions which denied those branches of the appellants' respective motions which were for summary judgment dismissing the second cause of action insofar as asserted against them, and substituting therefor provisions granting those branches of the appellants' motions, and the second cause of action is dismissed; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.
The Supreme Court properly denied those branches of the appellants' respective motions which were for summary judgment dismissing the first, third, and fourth causes of action insofar as asserted against them, since questions of fact exist. The Supreme Court erred, however, in denying those branches of the respective motions which were to dismiss the second cause of action, which alleges that the appellants failed to properly prosecute the action as against the Town of Putnam for the underlying accident. Contrary to the plaintiffs' contention, under the circumstances presented, they did not have a meritorious claim against the Town ( see, Vazquez v. Sea-Land Serv., 236 A.D.2d 321; Zasso v. Maher, 226 A.D.2d 366; Ossmer v. Bates, 97 A.D.2d 871).