Opinion
2020–03960 Index No. 604465/17
12-20-2023
Frederick LANG, respondent, v. Michelle DIPAOLO, et al., appellants (and a third-party action).
Kaufman Borgeest & Ryan LLP, New York, NY (Rebecca A. Barrett and David Bloom of counsel), for appellants.
Kaufman Borgeest & Ryan LLP, New York, NY (Rebecca A. Barrett and David Bloom of counsel), for appellants.
COLLEEN D. DUFFY, J.P., LINDA CHRISTOPHER, LILLIAN WAN, CARL J. LANDICINO, JJ.
DECISION & ORDER In an action, inter alia, to recover damages for legal malpractice, the defendants appeal from an order of the Supreme Court, Nassau County (Roy S. Mahon, J.), entered May 12, 2020. The order denied the defendants’ motion for summary judgment dismissing the complaint and on their counterclaim against the plaintiff to recover on an account stated in the total sum of $1,610.
ORDERED that the order is reversed, on the law, with costs, and the defendants’ motion for summary judgment dismissing the complaint and on their counterclaim against the plaintiff to recover on an account stated in the total sum of $1,610 is granted. In May 2017, the plaintiff commenced this action against the defendants, his former counsel in a divorce proceeding (hereinafter former counsel), to recover damages for legal malpractice and related claims. The plaintiff alleged, inter alia, that former counsel was negligent in representing him in the divorce action. Former counsel interposed a counterclaim against the plaintiff, to recover on an account stated in the total sum of $1,610, alleging that the plaintiff owed unpaid legal fees. Following the completion of discovery, former counsel moved for summary judgment dismissing the complaint and to recover on the counterclaim. In an order entered May 12, 2020, the Supreme Court denied the motion. Former counsel appeals. We reverse.
A plaintiff seeking to recover damages for legal malpractice must prove that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages (see McCoy v. Feinman, 99 N.Y.2d 295, 301–302, 755 N.Y.S.2d 693, 785 N.E.2d 714 ). "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" ( Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385 ; see Valley Ventures, LLC v. Joseph J. Haspel, PLLC, 102 A.D.3d 955, 956, 958 N.Y.S.2d 604 ). A defendant moving for summary judgment dismissing a legal malpractice cause of action has the burden of establishing prima facie that he or she did not fail to exercise such skill and knowledge, or that the claimed departure did not proximately cause the plaintiff to sustain damages (see EDJ Realty, Inc. v. Siegel, 202 A.D.3d 1059, 1060, 159 N.Y.S.3d 868 ). Once a defendant makes this prima facie showing, the burden shifts to the plaintiff to raise a triable issue of fact (see id. at 1061, 159 N.Y.S.3d 868 ; Valley Ventures, LLC v. Joseph J. Haspel, PLLC, 102 A.D.3d at 956, 958 N.Y.S.2d 604 ).
Here, former counsel established their prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that their actions did not proximately cause the plaintiff's alleged damages, and that subsequent counsel had a sufficient opportunity to protect the plaintiff's rights (see Parklex Assoc. v. Flemming Zulack Williamson Zauderer, LLP, 118 A.D.3d 968, 970, 989 N.Y.S.2d 60 ; Katz v. Herzfeld & Rubin, P.C., 48 A.D.3d 640, 641, 853 N.Y.S.2d 104 ). In opposition, the plaintiff failed to raise a triable issue of fact as the plaintiff failed to address the issue of proximate cause (see Givens v. De Moya, 193 A.D.3d 691, 693, 146 N.Y.S.3d 291 ).
The Supreme Court also should have granted the branch of motion by former counsel which was for summary judgment on their counterclaim to recover on an account stated in the total sum of $1,610. "An account stated is an agreement between parties, based upon their prior transactions, with respect to the correctness of the account items and the specific balance due" ( Citibank [South Dakota], N.A. v. Abraham, 138 A.D.3d 1053, 1056, 31 N.Y.S.3d 517 ; see Michael B. Shulman & Assoc., P.C. v. Canzona, 201 A.D.3d 716, 717, 161 N.Y.S.3d 291 ). Here, former counsel demonstrated their prima facie establishment to judgment as a matter of law on their counterclaim to recover legal fees on an account stated in the total sum of $1,610 (see Givens v. De Moya, 193 A.D.3d at 693–694, 146 N.Y.S.3d 291 ; Joseph W. Ryan, Jr., P.C. v. Faibish, 136 A.D.3d 984, 985, 27 N.Y.S.3d 159 ). In opposition, the plaintiff failed to raise a triable issue of fact.
Accordingly, the Supreme Court should have granted the motion in its entirety.
DUFFY, J.P., CHRISTOPHER, WAN and LANDICINO, JJ., concur.