Opinion
January 10, 1991
Appeal from the Supreme Court, New York County (Beverly Cohen, J.).
In this action for legal malpractice, plaintiff argues on appeal that the court treated the motion to dismiss as one for summary judgment without notice to plaintiff. The fact that plaintiff's own reply to a supplementary affidavit requested that the motion be treated as a motion for summary judgment on the issue of liability indicates that the court did not err procedurally (Wein v City of New York, 36 N.Y.2d 610). With respect to the merits of plaintiff's opposition to the motion for summary judgment, plaintiff failed to demonstrate that there were any issues of fact as to whether defendant was negligent, and whether, but for the negligence, plaintiff would have been successful in the prior action (see, Pacesetter Communications Corp. v Solin Breindel, 150 A.D.2d 232, lv dismissed 74 N.Y.2d 892).
Concur — Sullivan, J.P., Milonas, Rosenberger, Wallach and Smith, JJ.