Anne Koplick Designs, Inc. v. Lite

• Decision Date: 10 August 2010
• Citation: 906 N.Y.S.2d 331,76 A.D.3d 535
• Parties: ANNE KOPLICK DESIGNS, INC., et al., respondents, v. Justin N. LITE, et al., appellants (and a third-party action).
• Court: New York Supreme Court — Appellate Division

906 N.Y.S.2d 331

76 A.D.3d 535

ANNE KOPLICK DESIGNS, INC., et al., respondents,

v. Justin N. LITE, et al., appellants(and a third-party action).

Supreme Court, Appellate Division, Second Department, New York.

Aug. 10, 2010.

Lite & Russell, West Islip, N.Y. (Justin N. Lite, pro se, of counsel), appellant pro se and for appellants Justin N. Lite and Frank Russell.

Schwartz & Ponterio, PLLC, New York, N.Y. (Matthew F. Schwartz of counsel), for respondents.

MARK C. DILLON, J.P., HOWARD MILLER, RANDALL T. ENG, and CHERYL E. CHAMBERS, JJ.

In an action to recover damages for legal malpractice, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Putnam County (O'Rourke, J.), dated August 17, 2009, as granted that branch of the plaintiffs' motion which was for summary judgment on the issue of liability.

ORDERED that the order is affirmed insofar as appealed from, with costs.

"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] ). "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. at 442, 835 N.Y.S.2d 534, 867 N.E.2d 385).

Here, the plaintiffs made a prima facie showing of their entitlement to judgment as a matter of law on the issue of liability( see CPLR 3212[b]; Yiouti Rest. v. Sotiriou, 151 A.D.2d 744, 745, 542 N.Y.S.2d 767). In support of their motion, the plaintiffs submitted an expert affirmation of an attorney establishing that the defendant Justin N. Lite failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession by, among other things, advising the plaintiffs to default in a lawsuit commenced against them in California and advising them that a default judgment obtained in California would not be enforceable in New York, a clearly incorrect statement of the law ( see Logalbo v. Plishkin, Rubano & Baum, 163 A.D.2d 511, 558 N.Y.S.2d 185; Yiouti Rest. v. Sotiriou, 151 A.D.2d at 745, 542 N.Y.S.2d 767). The plaintiffs' submissions also established that, but for the defendants' malpractice, they would have succeeded in defending the underlying claim. In opposition, the defendants failed to raise a triable issue of fact ( see ...