Opinion
2013-01-30
VALLEY VENTURES, LLC, et al., respondents, v. JOSEPH J. HASPEL, PLLC, et al., appellants.
Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, N.Y. (Stephen D. Straus of counsel), for appellants. Agovino & Asselta, LLP, Mineola, N.Y. (Frank W. Brennan and John M. Comiskey of counsel), for respondents.
Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, N.Y. (Stephen D. Straus of counsel), for appellants. Agovino & Asselta, LLP, Mineola, N.Y. (Frank W. Brennan and John M. Comiskey of counsel), for respondents.
In an action, inter alia, to recover damages for legal malpractice, the defendants appeal from an order of the Supreme Court, Orange County (Bartlett, J.), dated February 7, 2012, which denied their motion for summary judgment dismissing the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.
“In an action to recover damages for legal malpractice, a plaintiff must demonstrate 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 plaintiff to sustain actual and ascertainable damages” ( Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385 [internal quotation marks omitted]; see Verdi v. Jacoby & Meyers, LLP, 92 A.D.3d 771, 772, 938 N.Y.S.2d 806;Barnett v. Schwartz, 47 A.D.3d 197, 203, 848 N.Y.S.2d 663). “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 at 442, 835 N.Y.S.2d 534, 867 N.E.2d 385). “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” ( Verdi v. Jacoby & Meyers, LLP, 92 A.D.3d at 772, 938 N.Y.S.2d 806 [internal quotation marks omitted] ). Once a defendant makes this prima facie showing, the burden shifts to the plaintiff to raise an issue of fact requiring a trial ( see Siciliano v. Forchelli & Forchelli, 17 A.D.3d 343, 344–345, 793 N.Y.S.2d 102;Schadoff v. Russ, 278 A.D.2d 222, 223, 717 N.Y.S.2d 284).
Here, the defendants established their prima facie entitlement to judgment as a matter of law dismissing the complaint by demonstrating that the plaintiffs would be unable to prove the element of causation ( see Marino v. Lipsitz, Green, Fahringer, Roll, Salibury & Cambria, LLP, 87 A.D.3d 566, 567, 928 N.Y.S.2d 462;Pistilli Constr. & Dev. Corp. v. Epstein, Rayhill & Frankini, 84 A.D.3d 913, 914, 921 N.Y.S.2d 887;Markowitz v. Kurzman Eisenberg Corbin Lever & Goodman, LLP, 82 A.D.3d 719, 917 N.Y.S.2d 683). In opposition, the plaintiffs failed to raise a triable issue of fact ( see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).
Accordingly, the Supreme Court should have granted the defendants' motion for summary judgment dismissing the complaint.