Opinion
February 16, 2000
Appeal from Order of Supreme Court, Wyoming County, Dillon, J. — Summary Judgment.
PRESENT: GREEN, A. P. J., HAYES, WISNER AND BALIO, JJ.
Order unanimously affirmed without costs.
Memorandum:
Plaintiffs commenced this action to recover damages for legal malpractice based upon defendants' alleged failure to commence a timely action for breach of contract against the Village of Mt. Morris after filing a notice of claim. Supreme Court properly granted defendants' motion for summary judgment dismissing the claims for all damages except those for fees for legal services. A cause of action for legal malpractice requires proof "that the defendants failed to exercise that degree of care, skill and diligence commonly possessed and exercised by an ordinary member of the legal community, that such negligence was the proximate cause of the actual damages sustained by the plaintiffs, and that but for the defendants' negligence, the plaintiffs would have been successful in the underlying action" ( Logalbo v. Plishkin, Rubano Baum, 163 A.D.2d 511, 513, lv dismissed 77 N.Y.2d 940; see, Campcore, Inc. v. Mathews, 261 A.D.2d 870, lv denied 93 N.Y.2d 814, rearg denied 94 N.Y.2d 839 [decided Dec. 2, 1999]; Lefkowitz v. Lurie, 253 A.D.2d 855). Defendants met their initial burden by establishing that plaintiffs would not have been successful on their underlying claim against the Village of Mt. Morris, and plaintiffs failed to raise a triable issue of fact ( see, Ippolito v. McCormack, Damiani, Lowe Mellon, 265 A.D.2d 303 [decided Oct. 4, 1999]; Campcore, Inc. v. Mathews, supra; Damstetter v. Martin [appeal No. 2] , 247 A.D.2d 893, 894).