Opinion
517361.
10-23-2014
M & R GINSBURG, LLC, Plaintiff, v. SEGEL, GOLDMAN, MAZZOTTA & SIEGEL, P.C., et al., Defendants and Third–Party Plaintiffs–Appellants. Gleason, Dunn, Walsh and O'Shea, P.C., et al., Third–Party Defendants–Respondents.
Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (Laurence F. Sovik of counsel), for defendants and third-party plaintiffs-appellants. Hiscock & Barclay, Albany (David B. Cabiniss of counsel), for third-party defendants-respondents.
Smith, Sovik, Kendrick & Sugnet, P.C., Syracuse (Laurence F. Sovik of counsel), for defendants and third-party plaintiffs-appellants.
Hiscock & Barclay, Albany (David B. Cabiniss of counsel), for third-party defendants-respondents.
Before: PETERS, P.J., LAHTINEN, GARRY, ROSE and CLARK, JJ.
Opinion
LAHTINEN, J.Appeal from an order of the Supreme Court (Nolan Jr., J.), entered November 27, 2012 in Saratoga County, which granted third-party defendants' motion for summary judgment dismissing the third-party complaint.
The underlying facts are set forth fully in our decision in a prior appeal in this legal malpractice action (90 A.D.3d 1208, 934 N.Y.S.2d 269 [2011] ), as well as our decisions in two appeals involving litigation relevant to this action (M & R Ginsburg, LLC v. Orange Canyon Dev. Co., LLC, 84 A.D.3d 1470, 923 N.Y.S.2d 226 [2011] ; M & R Ginsburg, LLC v. Orange Canyon Dev. Co., LLC, 69 A.D.3d 1181, 893 N.Y.S.2d 369 [2010] ). Plaintiff commenced this malpractice action against defendants in 2009. In 2012, defendants brought the third-party action alleging that, after their purported malpractice, legal advice by third-party defendants resulted in unnecessary litigation that exacerbated plaintiff's damages. Third-party defendants moved to dismiss the third-party complaint, which was treated by the parties and Supreme Court as a motion for summary judgment (see Gregware v. Key Bank of N.Y., 218 A.D.2d 859, 861, 630 N.Y.S.2d 148 [1995], lv. denied 87 N.Y.2d 803, 639 N.Y.S.2d 311, 662 N.E.2d 792 [1995] ). Supreme Court granted third-party defendants' motion and defendants appeal.We affirm. Third-party defendants established with regard to the complex legal issue facing plaintiff that the legal course they recommended—after consulting with plaintiff and defendants—was “one among several reasonable courses of action [and did] not constitute malpractice” (Rosner v. Paley, 65 N.Y.2d 736, 738, 492 N.Y.S.2d 13, 481 N.E.2d 553 [1985] ; see Bixby v. Somerville, 62 A.D.3d 1137, 1139, 880 N.Y.S.2d 205 [2009] ). Although defendants speculate that a different strategy might have ultimately led to a more beneficial result for plaintiff, such speculation as to other possible legal avenues is insufficient to implicate malpractice (see Rosner v. Paley, 65 N.Y.2d at 738, 492 N.Y.S.2d 13, 481 N.E.2d 553 ). Defendants' allegations and proof regarding third-party defendants' representation of plaintiff did not raise a triable issue when measured by the applicable standard in a legal malpractice action (see Russo v. Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, LLP, 301 A.D.2d 63, 69, 750 N.Y.S.2d 277 [2002] ; Bassim v. Halliday, 234 A.D.2d 628, 630, 650 N.Y.S.2d 467 [1996], appeal dismissed 89 N.Y.2d 1001, 657 N.Y.S.2d 399, 679 N.E.2d 638 [1997] ; Bernstein v. Oppenheim & Co., 160 A.D.2d 428, 430, 554 N.Y.S.2d 487 [1990] ).
Although summary judgment was not listed as a form of relief in their notice of motion, third-party defendants set forth and argued for, among other things, summary judgment in an affidavit submitted with their motion. Defendants do not challenge on appeal the treatment of the motion as one for summary judgment, and the record reflects that the parties charted a summary judgment course.
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Third-party defendants' argument regarding the effect on this appeal of a general release that they recently received from plaintiff, which is not in the record, is academic.
ORDERED that the order is affirmed, with costs.
PETERS, P.J., GARRY, ROSE and CLARK, JJ., concur.