Opinion
March 8, 1996
Appeal from the Supreme Court, Monroe County, Ark, J.
Present — Green, J.P., Pine, Fallon, Doerr and Davis, JJ.
Order unanimously affirmed without costs. Memorandum: Plaintiff commenced this action to recover damages resulting from defendants' alleged negligence in failing properly to institute a CPLR article 78 proceeding. In that proceeding, plaintiff sought to challenge a determination of the New York State and Local Retirement Systems (Retirement Systems) denying his applications for accidental disability retirement ( see, Retirement and Social Security Law § 363) and retirement for disability incurred in the performance of duty ( see, Retirement and Social Security Law § 363-c). The CPLR article 78 petition was dismissed for lack of jurisdiction based upon the failure to indicate a return date in the petition and to serve respondents validly ( Matter of Figaro v New York State Local Retirement Sys., 203 A.D.2d 678, lv denied 84 N.Y.2d 801).
Supreme Court properly granted defendants' motion for summary judgment dismissing the complaint. "In order to hold the defendant[s] liable, the plaintiff must establish that he would have prevailed in the underlying proceeding if the defendant[s] had exercised reasonable care" ( Flinn v Aab, 167 A.D.2d 507). The record establishes, however, that the underlying determination of the Retirement Systems is supported by substantial evidence and would have been confirmed in the CPLR article 78 proceeding ( see, Matter of Sledge v New York State Police Firemen's Retirement Sys., 199 A.D.2d 944; Matter of Valerioti v New York State Comptroller, 186 A.D.2d 858; Matter of Newman v New York State Police Firemen's Retirement Sys., 186 A.D.2d 306, lv denied 81 N.Y.2d 701). Defendants, therefore, cannot be held liable for legal malpractice based upon their alleged negligence in drafting and serving the CPLR article 78 petition ( see, Prestige Roofing Siding Co. v Bivona, 201 A.D.2d 713; Flinn v Aab, supra).