To make a prima facie showing on a motion for summary judgment, the attorney in a legal malpractice action must present admissible evidence that the plaintiff cannot prove at least one of the essential elements of a legal malpractice claim ( see e.g. Carrasco v Pena Kahn, 48 AD3d 395, 396; Shopsin v Siben Siben, 268 AD2d 578). To recover damages for legal malpractice, a plaintiff must prove, inter alia, the existence of an attorney-client relationship ( see Velasquez v Katz, 42 AD3d 566, 567; Moran v Hurst, 32 AD3d 909; Wei Cheng Chang v Pi, 288 AD2d 378, 380; Volpe v Canfield, 237 AD2d 282, 283). While a plaintiffs unilateral belief does not confer upon him or her the status of client ( see Volpe v Canfield, 237 AD2d at 283), an attorney-client relationship may exist in the absence of a formal retainer agreement ( see e.g. Swalg Dev. Corp. v Gaines, 274 AD2d 385, 386).

To establish a prima facie cause of action for legal malpractice, plaintiff is required to prove (1) that the attorney was negligent, (2) that the attorney's negligence was the proximate cause of plaintiff's damages, and (3) evidence of actual damages (Pellegrino v. File, 291 A.D.2d 60, 63 [1st Dept. 2002]; Schwartz v. 1462 Olshan Grundman Frome Rosenzweig, 2003 WL 131652 [1st Dept. 20031;Between the Bread Realty Corp v. Salans Hertzfeld Heilbronn Christy Viener, 290 A.D.2d 380 [1st Dept. 2002], lv. denied 98 N.Y.2d 603). Plaintiff is also required to prove that an attorney-client relationship existed between the parties(Volpe v. Canfield, 237 A.D.2d 282 [2nd Dept. 1997], Wei Cheng Chana v. Pi, 288 A.D.2d 378 [2nd Dept. 20011). At the core of plaintiff's complaint lies the argument that when defendant Fein volunteered to draft the sperm donor contract for the parties, an attorney client was created between defendant Fein and plaintiff, notwithstanding the lack of a formalized agreement between the parties.

There is also no evidence supporting Stonewell's contention that Dollinger's conduct caused any damages to Stonewell. See Fashion Boutique of Short Hills, 780 N.Y.S. 2d at 596 (requiring a showing that plaintiff incurred damages as a direct result of the attorney's actions, and that the plaintiff would have been successful in the underlying action had the attorney exercised due care); Volpe v. Canfield, 654 N.Y.S. 2d 160, 161 (2d Dep't 1997) (same). The Court rejects Stonewell's contention that the New York court presiding over the Williams action would have ruled in favor of Stonewell had that action been completed prior to decision in the Florida forfeiture proceedings.

Furthermore, the Supreme Court erred in denying Osdoby's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against her on the ground that it was incorrectly labeled a cross motion. Although "[a] cross motion is an improper vehicle for seeking affirmative relief from a nonmoving party" ( Mango v Long Is. Jewish-Hillside Med. Ctr., 123 AD2d 843, 844; see CPLR 2215; Kleeherg v City of New York, 305 AD2d 549, 550), a technical defect of this nature may be disregarded where, as here, there is no prejudice, and the opposing parties had ample opportunity to be heard on the merits of the relief sought ( see CPLR 2001; Sheehan v Marshall, 9 AD3d 403, 404; Kleeherg v City of New York, 305 AD2d at 550; Volpe v Canfield, 237 AD2d 282, 283). While the Supreme Court also denied Osdoby's motion on the ground that it was not supported by pleadings and other available proof, Osdoby incorporated by reference the pleadings and exhibits submitted by Albert in support of his original motion, and those pleadings and exhibits were therefore properly before the court ( see Carlson v Town of Mina, 31 AD3d 1176, 1177; Welch v Hauck, 18 AD3d 1096, 1098; Mahone v Washington, 17 AD3d 1059).

We conclude that Supreme Court erred in granting the motion of defendant Thomas D. Calandra, Esq. seeking summary judgment dismissing the complaint against him. We agree with Calandra that he met his initial burden on the motion by submitting evidence that he did not have an attorney-client relationship with plaintiffs, i.e., that he had no involvement in the personal injury action and he had no fee-sharing agreement with defendant Rene F. Hensel, Esq. with respect to that action ( see Rechberger v Scolaro, Shulman, Cohen, Fetter Burstein, P.C., 45 AD3d 1453; Volpe v Canfield, 237 AD2d 282, 283, lv denied 90 NY2d 802). In opposition to the motion, however, plaintiffs raised a triable issue of fact whether they had an attorney-client relationship with Calandra at the time of the alleged malpractice ( see Tropp v Lumer, 23 AD3d 550; cf. Jane St. Co. v Rosenberg Estis, 192 AD2d 451, lv denied 82 NY2d 654).

Additionally, in order to properly plead a cause of action for legal malpractice, a plaintiff must establish the existence of an attorney-client relationship (see Moran v Hurst, 32 A.D.3d 909, 910-911 [2d Dept 2006]; Volpe v Canfield, 237 A.D.2d 282, 283 [2d Dept 1997]). Such a relationship exists when there is an explicit undertaking to perform a specific task (Volpe, 237 A.D.3d at 283; Sucese v Kirsch, 199 A.D.2d 718, 719 [3d Dept 1993]).

As with attorney-client relationships, to recover damages for accounting malpractice, a plaintiff must prove, among other things, the existence of a professional relationship (see Wei Cheng Chang v Pi, 288 AD2d 378, 380 [2d Dept 2001]). A party's unilateral or unreasonable belief that there is an accountant-client relationship does not confer upon that party the status of a client (see Volpe v Canfield, 237 AD2d 282, 283 [2d Dept 1997]). That particular relationship is only established "where there is an explicit undertaking to perform a specific task" (Wei Cheng Chang v Pi, 288 AD2d at 380 [no attorney-client relationship was created between buyers and attorneys, and thus attorneys were not liable to buyers for legal malpractice]; see also Volpe v Canfield, 237 AD2d at 283 [same]).

Furthermore, the Supreme Court erred in denying Osdoby's motion for summary judgment dismissing the complaint and all cross claims insofar as asserted against her on the ground that it was incorrectly labeled a cross motion. Although “[a] cross motion is an improper vehicle for seeking affirmative relief from a nonmoving party” ( Mango v. Long Is. Jewish–Hillside Med. Ctr., 123 A.D.2d 843, 844, 507 N.Y.S.2d 456;seeCPLR 2215; Kleeberg v. City of New York, 305 A.D.2d 549, 550, 759 N.Y.S.2d 760), a technical defect of this nature may be disregarded where, as here, there is no prejudice, and the opposing parties had ample opportunity to be heard on the merits of the relief sought ( seeCPLR 2001; Sheehan v. Marshall, 9 A.D.3d 403, 404, 780 N.Y.S.2d 34;Kleeberg v. City of New York, 305 A.D.2d at 550, 759 N.Y.S.2d 760;Volpe v. Canfield, 237 A.D.2d 282, 283, 654 N.Y.S.2d 160). While the Supreme Court also denied Osdoby's motion on the ground that it was not supported by pleadings and other available proof, Osdoby incorporated by reference the pleadings and exhibits submitted by Albert in support of his original motion, and those pleadings and exhibits were therefore properly before the court ( see Carlson v. Town of Mina, 31 A.D.3d 1176, 1177, 818 N.Y.S.2d 697;Welch v. Hauck, 18 A.D.3d 1096, 1098, 795 N.Y.S.2d 789;Mahone v. Washington, 17 A.D.3d 1059, 793 N.Y.S.2d 786).

However, it is well-settled that one party's unilateral, subjective belief that he was a client is not sufficient to establish an attorney-client relationship. See Kubin v. Miller, 801 F.Supp. 1101, 1115 (S.D.N.Y. Jul. 31, 1992) ("[A]lthough the so-called client's subjective belief can be considered by the court . . . this belief is not sufficient to establish an attorney-client relationship.")); see Stratavest Ltd. v. Rogers, 903 F.Supp. 663, 667 (S.D.N.Y. Nov. 16, 1995) (citing Kubin); Volpe v. Canfield, 654 N.Y.S.2d 160, 162 (2d Dep't 1997) ("A plaintiff's unilateral belief does not confer upon him the status of client."). This factor, therefore, provides little, if any, support for Plaintiffs' position, and is substantially outweighed by all of the other relevant factors.

(Leffler Mem. 14-16.) See, e.g., Volpe v. Canfield, 654 N.Y.S.2d 160 (2d Dep't 1997). This principle is merely another way to state that a lawyer must proximately have caused the client's claimed harm to be liable in malpractice.