Alizio v. Feldman
| Decision Date | 08 March 2011 |
| Citation | 918 N.Y.S.2d 218,82 A.D.3d 804 |
| Parties | Joseph ALIZIO, et al., respondents, v. Richard B. FELDMAN, et al., appellants. |
| Court | New York Supreme Court — Appellate Division |
Abrams, Gorelick, Friedman & Jacobson, P.C., New York, N.Y. (Barry Jacobs and Shari Sckolnick of counsel), for appellants.
Jeffrey Levitt, Massapequa, N.Y., for respondents.
DANIEL D. ANGIOLILLO, J.P., CHERYL E. CHAMBERS, SHERI S. ROMAN, and ROBERT J. MILLER, JJ.
In an action, inter alia, to recover damages for legal malpractice, the defendants appeal from an order of the Supreme Court, Nassau County (Brandveen, J.), entered March 19, 2010, which denied their motion for summary judgment dismissing the complaint.
ORDERED that the order is modified, on the law, by deleting the provisions thereof denying those branches of the defendants' motion which were for summary judgment dismissing so much of the second, fourth, and sixth causes of action as sought declaratory relief, and so much of the first, third, and fifth causes of action as alleged breach of contract, and substituting therefor provisions granting those branches of the defendants' motion; as so modified, the order is affirmed, without costs or disbursements.
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 the plaintiff to sustain actual and ascertainable damages ( see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385). "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" ( id.). 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 ( see Lichtenstein v. Barenbaum, 23 A.D.3d 440, 440, 803 N.Y.S.2d 916). Here, the defendants failed to make a prima facie showing of their entitlement to judgment as a matter of law ( see Mueller v. Fruchter, 71 A.D.3d 650, 651, 894 N.Y.S.2d 915). It was the defendants' burden, as the parties moving for summary judgment, to demonstrate affirmatively the merit of their defense, which cannot be sustained by pointing out gaps in the plaintiffs' proof ( see Gamer v. Ross, 49 A.D.3d 598, 600, 854 N.Y.S.2d 160; Mennerich v. Esposito, 4 A.D.3d 399, 400, 772 N.Y.S.2d 91; cf. Brady v. Bisogno & Meyerson, 32 A.D.3d 410, 819 N.Y.S.2d 558). Accordingl...
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