Boglia v. Greenberg
| Decision Date | 23 June 2009 |
| Docket Number | 2008-00647. |
| Citation | 2009 NY Slip Op 05278,63 A.D.3d 973,882 N.Y.S.2d 215 |
| Parties | SUSAN BOGLIA, Appellant, v. EDWARD C. GREENBERG et al., Respondents. |
| Court | New York Supreme Court — Appellate Division |
Ordered that the order is modified, on the law, by deleting the provisions thereof granting those branches of the defendants' cross motion which were for summary judgment dismissing the second and fifth causes of action and for summary judgment on the counterclaim to recover outstanding legal fees and substituting thereof provisions denying those branches of the cross motion; as so modified, the order is affirmed, without costs or disbursements.
The plaintiff retained the defendants to represent her in a matrimonial action seeking, inter alia, equitable distribution of the marital assets, which primarily consisted of a residence that the plaintiff and her former husband resided in during the marriage. It was undisputed that the residence was inherited by the former husband prior to the marriage. During the course of the underlying action, the plaintiff terminated the defendants' representation of her and hired another attorney, who had previously been employed by the defendants, to represent her. The plaintiff eventually settled the underlying action with her former husband before proceeding to trial and received a settlement in the amount of $200,000.
The plaintiff commenced this action against the defendants seeking, inter alia, to recover damages for legal malpractice alleging that the defendants negligently advised her of her rights to equitable distribution of the residence, and failed to communicate an offer of settlement to her in the amount of $250,000. She also sought to recover legal fees already paid to the defendants on the grounds that the fees were excessive and that she had discharged the defendants for cause. The defendants brought a counterclaim against the plaintiff seeking to recover outstanding legal fees.
To sustain a cause of action alleging legal malpractice, a plaintiff must establish 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 actual and ascertainable damages (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007], quoting McCoy v Feinman, 99 NY2d 295, 301-302 [2002]; see Bauza v Livington, 40 AD3d 791, 792-793 [2007]; Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303 AD2d 561, 562 [2003]). To obtain summary judgment dismissing a complaint in an action to recover damages for legal malpractice, a defendant must demonstrate that the plaintiff is unable to prove at least one of the essential elements of its legal malpractice cause of action (see Kotzian v McCarthy, 36 AD3d 863, 863 [2007]; Fasanella v Levy, 27 AD3d 616, 616 [2006]). The defendants met their burden of establishing entitlement to judgment as a matter of law by demonstrating that the plaintiff would be unable to prove that, but for the defendants' alleged negligent advice regarding her rights to equitable distribution, she would have prevailed in the underlying action had it proceeded to trial. The plaintiff, in opposition, failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted that branch of the defendants' cross motion which was for summary judgment dismissing the first cause of action, alleging legal malpractice based upon the defendants' alleged negligent advice regarding her rights to equitable distribution of the residence, and properly denied that...
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