Opinion
February 4, 1994
Appeal from the Supreme Court, Monroe County, Siragusa, J.
Present — Callahan, J.P., Pine, Fallon, Doerr and Davis, JJ.
Order affirmed without costs. Memorandum: Defendants failed to meet their burden on this motion for summary judgment to establish as a matter of law that they were not chargeable with malpractice (see, Zuckerman v. City of New York, 49 N.Y.2d 557).
All concur except Callahan, J.P., and Doerr, J., who dissent and vote to reverse in the following Memorandum.
We respectfully dissent. To establish a prima facie case of legal malpractice, plaintiff must demonstrate that, "but for the negligent handling of his case, he would have prevailed" in his attempt to resist a motion by his adversary in an estate matter to hold him in contempt for failing to comply with a document production order (Metrokane Imports v. Kane, Dalsimer, Kane, Sullivan Kurucz, 150 A.D.2d 153, 154). In our view, the voluntary withdrawal by plaintiff of his appeal to this Court from the contempt order has resulted in his inability to prove that the order was properly issued and that its issuance was the result of defendants' negligence.