Opinion
Argued May 11, 2001.
September 17, 2001.
In two related actions, inter alia, to recover damages for legal malpractice (Action No. 1), and to recover an attorney's fee (Action No. 2), (1) the plaintiff in Action No. 1 appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (McCarty, J.), dated June 23, 2000, as granted those branches of the motion of the defendants in that action which were for summary judgment dismissing the second and third causes of action in their entirety and so much of the first cause of action to the extent of limiting the claims contained therein to events which occurred between February 12, 1997, and April 22, 1997, and the defendants in Action No. 1 cross-appeal, as limited by their brief, from so much of the same order as denied that branch of their motion which was for summary judgment dismissing the plaintiff's first cause of action in its entirety and failed to remit Action No. 2 to the District Court, Nassau County, and (2) the plaintiff in Action No. 1 appeals and the defendants in Action No. 1 cross-appeal, as limited by their respective briefs, from so much of an order of the same court, entered December 1, 2000, as, upon reargument, adhered to the original determination.
Jeffrey Levitt, Amityville, N.Y., for appellant-respondent.
L'Abbate, Balkan, Colavita Contini, LLP, Garden City, N Y (Peter D. Rigelhaupt of counsel), for respondents-appellants.
Before: GABRIEL M. KRAUSMAN, J.P., ANITA R. FLORIO, SANDRA J. FEUERSTEIN, BARRY A. COZIER, JJ.
ORDERED that the appeal and cross appeal from the order dated June 23, 2000, are dismissed, as that order was superseded by the order entered December 1, 2000, made upon reargument; and it is further,
ORDERED that the order entered December 1, 2000, is modified, on the law, by deleting the provision thereof which, upon reargument, adhered to so much of the prior order as granted that branch of the motion of the defendants in Action No. 1 which was for summary judgment dismissing the complaint to the extent of limiting the claims contained in the plaintiff's first cause of action to events occurring between February 12, 1997, and April 22, 1997, and substituting therefor provisions granting that branch of the defendants' motion in its entirety, and remitting Action No. 2 to the District Court, Nassau County; as so modified, the order is affirmed insofar as appealed and cross-appealed from; and it is further,
ORDERED that the defendants in Action No. 1 are awarded one bill of costs.
The defendants in Action No. 1 made out a prima facie case for summary judgment dismissing in its entirety the first cause of action sounding in legal malpractice. The burden then shifted to the plaintiff to show the existence of a triable issue of fact. Since she failed to do so, that branch of the defendants' motion which sought to dismiss the first cause of action should have been granted in its entirety (see, Luniewski v. Zeitlin, 188 A.D.2d 642; see generally, Zuckerman v. City of New York, 49 N.Y.2d 557).
In light of this determination, there is no need for Action No. 2 to remain in the Supreme Court. That action seeks to recover an attorney's fee, and was previously joined but not consolidated with Action No. 1.
The parties' remaining contentions are either without merit or academic in light of this determination.