Iannarone v. Gramer

38 Citing cases

  1. Achtman v. Kirby, McInerney & Squire, LLP

    336 F. Supp. 2d 336 (S.D.N.Y. 2004)   Cited 3 times

    Similarly, defendant attorneys in Iannarone v. Gramer failed to timely commence an action against the owner of the property on which plaintiff was injured, and instead sued the lessee of the property who was also the plaintiffs employer. 682 N.Y.S.2d 84, 85 (N.Y.App.Div. 1998). After plaintiff's action was dismissed on the grounds that workers compensation was plaintiff's exclusive remedy against her employer, the Second Department found attorney defendants' failure to timely include the owner of the property did "not simply involve an error of judgment."

  2. Chamberlain, D'Amanda, Oppenheimer & Greenfield, LLP v. Wilson

    136 A.D.3d 1326 (N.Y. App. Div. 2016)   Cited 10 times

    Defendant contends, inter alia, that but for plaintiff's alleged negligence she would have received a more favorable result had she proceeded to trial. Generally, “to recover damages for legal malpractice, a [client] must prove (1) that the [law firm] failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community, (2) proximate cause, (3) damages, and (4) that the [client] would have been successful in the underlying action had the [law firm] exercised due care” (Iannarone v. Gramer, 256 A.D.2d 443, 444, 682 N.Y.S.2d 84; see Blank v. Harry Katz, P.C., 3 A.D.3d 512, 513, 770 N.Y.S.2d 742). In a legal malpractice action in which there was no settlement of the underlying action, it is well settled that, “[t]o obtain summary judgment dismissing [the] complaint ..., a [law firm] must demonstrate that the [client] is unable to prove at least one of the essential elements of its legal malpractice cause of action” (Boglia v. Greenberg, 63 A.D.3d 973, 974, 882 N.Y.S.2d 215; Ehlinger v. Ruberti, Girvin & Ferlazzo, 304 A.D.2d 925, 926, 758 N.Y.S.2d 195).

  3. Hamoudeh v. Gary J. Mandel

    62 A.D.3d 948 (N.Y. App. Div. 2009)   Cited 10 times

    To establish a cause of action to recover damages for legal malpractice, a plaintiff must prove that the attorney "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty proximately caused the plaintiff actual and ascertainable damages" ( Maiolini v McAdams Fallon, P.C., 61 AD3d 644, 645 [citations and internal quotation marks omitted]). "To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer's negligence" ( id. [citations omitted]; see also Pedro v Walker, 46 AD3d 789; Lichtenstein v Barenbaum, 23 AD3d 440; Porello v Longworth, 21 AD3d 541; Dimond v Kazmierczuk McGrath, 15 AD3d 526; Iannarone v Gramer, 256 AD2d 443, 444). Here, the defendants established, prima facie, that even if they had commenced a timely action, the plaintiff would not have been successful on the merits, since he could not identify what had caused him to fall ( see Costantino v Webel, 57 AD3d 472; Karwowski v New York City Tr. Auth., 44 AD3d 826; Manning v 6638 18th Ave. Realty Corp., 28 AD3d 434; Golba v City of New York, 27 AD3d 524; Tejada v Jonas, 17 AD3d 448).

  4. Kew Gardens Hills Apartment Owners, Inc. v. Horing Welikson & Rosen, P.C.

    35 A.D.3d 383 (N.Y. App. Div. 2006)   Cited 27 times
    Dismissing conspiracy claim as duplicative of aiding and abetting claim

    The Supreme Court correctly denied the motion of the defendants Horing Welikson Rosen, P.C., Horing Welikson, P.C., Eric Schultz, and Robert Gordon (hereinafter the HWR defendants) for summary judgment dismissing the complaint and all cross claims insofar as asserted against them. The HWR defendants established their entitlement to judgment as a matter of law dismissing the legal malpractice claims asserted against them with regard to the advice they gave the plaintiff concerning the restructuring of its finances ( see Darby Darby v VSI Intl., 95 NY2d 308, 313; Turner v Robins, 267 AD2d 376; Iannarone v Gramer, 256 AD2d 443). In response, however, the plaintiff submitted documents raising specific issues regarding the legalities of the refinancing and its legal consequences compared to other potential alternatives ( see Koch v Bilich, 200 AD2d 716).

  5. Kossifos v. Katz, P.C

    33 A.D.3d 591 (N.Y. App. Div. 2006)   Cited 1 times

    omply with this condition precedent ( see Kossifos v Liberty Lines Tr., 277 AD2d 205), the plaintiff commenced this action to recover damages for legal malpractice against the defendants. The Supreme Court denied the defendants' motion for summary judgment dismissing the complaint, finding that there were issues of fact as to whether the defendants were negligent, and as to whether the bus driver was negligent in the underlying action. In order to prevail on a claim to recover damages for legal malpractice, a plaintiff must show (1) that the attorney failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community, (2) that the attorney's negligence was a proximate cause of the loss sustained, (3) that the plaintiff incurred damages as a direct result of the attorney's actions, and (4) that the plaintiff would have been successful if the attorney had exercised due care ( see Turner v Robins, 267 AD2d 376; McCoy v Tepper, 261 AD2d 592; Iannarone v Gramer, 256 AD2d 443). At the time that the defendants undertook to represent the plaintiffs decedent in the personal injury action, the law was well settled that, with respect to accidents arising out of the circumstances of this case, the timely filing of a notice of claim with the County of Westchester was a condition precedent to any litigation ( see Coleman v Westchester St. Transp. Co., 57 NY2d 734; Singer v Liberty Lines, 183 AD2d 820; McSpedon v Liberty Lines, 109 AD2d 731; James v Liberty Lines, 97 AD2d 749). Moreover, triable issues of fact exist as to whether the bus driver failed to see what, with the proper use of his senses, he should have seen ( see Gonzalez v County of Suffolk, 277 AD2d 350; see also Sappleton v Metropolitan Suburban Bus Auth., 140 AD2d 684; Pedersen v Balzan, 117 AD2d 933; McAlister v Schwartz, 105 AD2d 731).

  6. Carlos v. Lovett Gould

    29 A.D.3d 847 (N.Y. App. Div. 2006)   Cited 4 times

    In opposition, the plaintiff expressed only his unilateral belief that he and the defendants had an attorney-client relationship with respect to a state court breach of contract action prior to the expiration of the statute of limitations, which is insufficient to raise a triable issue of fact ( see Tropp v. Lumer, supra; Wei Cheng Chang v. Pi, supra; Volpe v. Canfield, supra). Moreover, the defendants established that the plaintiff's underlying breach of contract action would not have succeeded ( see Iannarone v. Gramer, 256 AD2d 443), as the plaintiff's employment agreement with the Town allowed the Town to remove him in accordance with state law, and the federal courts had determined that the Town's removal of the plaintiff as its Chief of Police was achieved legally and for legitimate reasons ( see Carlos v. Santos, 123 F3d 61). In opposition, the plaintiff failed to raise a triable issue of fact.

  7. Selletti v. Liotti

    22 A.D.3d 739 (N.Y. App. Div. 2005)   Cited 10 times

    The plaintiff alleged that the defendant's mishandling of the federal action resulted in the imposition of the monetary sanction. "To establish a cause of action to recover damages for legal malpractice, a plaintiff must prove (1) that the defendant attorney failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community, (2) proximate cause, (3) damages, and (4) that the plaintiff would have been successful in the underlying action had the attorney exercised due care" ( Iannarone v. Gramer, 256 AD2d 443, 444; see Blank v. Harry Katz, P.C., 3 AD3d 512, 513). While the issue of whether certain conduct constitutes legal malpractice is generally a factual determination to be made by the jury, a plaintiff will be entitled to summary judgment in a case where there is no conflict at all in the evidence, the defendant's conduct fell below any permissible standard of due care, and the plaintiff's conduct was not really involved ( see Logalbo v. Plishkin, Rubano Baum, 163 AD2d 511, 514). Here, the plaintiff failed to submit evidence sufficient to establish, as a matter of law, that his conduct in prosecuting the federal action did not contribute to the imposition of the monetary sanction ( see generally Winegrad v. New York Univ. Med. Ctr., 64 NY2d 851, 853).

  8. Tortura v. McGrath Cannavo

    21 A.D.3d 1082 (N.Y. App. Div. 2005)   Cited 81 times

    Subsequently, the plaintiff commenced this action against the defendant, alleging legal malpractice and breach of contract. "To establish a cause of action to recover damages for legal malpractice, a plaintiff must prove (1) that the defendant attorney failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community, (2) proximate cause, (3) damages, and (4) that the plaintiff would have been successful in the underlying action had the attorney exercised due care" ( Iannarone v. Gramer, 256 AD2d 443, 444; see Blank v. Harry Katz, P.C., 3 AD3d 512, 513). "A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel" ( Bernstein v. Oppenheim Co., 160 AD2d 428, 430; see Rau v. Borenkoff, 262 AD2d 388, 389; cf. Lattimore v. Bergman, 224 AD2d 497; Cohen v. Lipsig, 92 AD2d 536).

  9. Dimond v. McGrath

    15 A.D.3d 526 (N.Y. App. Div. 2005)   Cited 28 times

    Ordered that the order is affirmed, with costs. To recover damages for legal malpractice, a plaintiff must prove (1) that the defendant attorney failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community, (2) that the attorney's conduct was the proximate cause of the loss sustained, (3) that the plaintiff sustained damages as a direct result of the attorney's actions, and (4) that the plaintiff would have been successful in the underlying action had the attorney exercised due care ( see Iannarone v. Gramer, 256 AD2d 443, 444; Volpe v. Canfield, 237 AD2d 282, 283). To succeed on a motion for summary judgment, the defendant in a legal malpractice action must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements ( see Ostriker v. Taylor, Atkins Ostrow, 258 AD2d 572).

  10. Blank v. Harry Katz, P.C

    3 A.D.3d 512 (N.Y. App. Div. 2004)   Cited 10 times

    ORDERED that the order is affirmed, with costs. Contrary to the plaintiff's contention, he failed to meet his burden of establishing entitlement to judgment as a matter of law ( see Alvarez v. Prospect Hosp., 68 N.Y.2d 320; Iannarone v. Gramer, 256 A.D.2d 443). To prevail on a claim for legal malpractice, a plaintiff must establish (1) that the attorney failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community, (2) that the attorney's negligence was a proximate cause of the loss sustained, (3) that the plaintiff incurred damages as a direct result of the attorney's actions, and (4) that the plaintiff would have been successful in the underlying action had the attorney exercised due care ( see Iannarone v. Gramer, supra; Volpe v. Canfield, 237 A.D.2d 282). The plaintiff's submissions on his motion for summary judgment on the issue of liability did not establish that but for the defendant law firm's failure to timely commence an underlying action in the appropriate forum, the plaintiff would have succeeded in that underlying action ( see Marinelli Assoc. v. Morrison, 303 A.D.2d 386). Accordingly, the motion for summary judgment was properly denied.