Conklin v. Owen, 2010 NY Slip Op 03399 (N.Y. App. Div. 4/27/2010), 2009-07869.

• Decision Date: 27 April 2010
• Docket Number: 2009-07869.
• Parties: CLARENCE CONKLIN, respondent-appellant, v. JOSEPH A. OWEN, ETC., ET AL., appellants-respondents.
• Court: New York Supreme Court — Appellate Division

Page 1

2010 NY Slip Op 03399 CLARENCE CONKLIN, respondent-appellant,
v.
JOSEPH A. OWEN, ETC., ET AL., appellants-respondents. 2009-07869. Appellate Division of the Supreme Court of New York, Second Department. Decided April 27, 2010.

In an action, inter alia, to recover damages for legal malpractice, the defendants appeal from so much of an order of the Supreme Court, Westchester County (Cozzens, Jr., J.), entered July 28, 2009, as denied their motion for summary judgment dismissing the complaint, and the plaintiff cross-appeals, as limited by his brief, from so much of the same order as denied his cross motion for summary judgment on the issue of liability.

Steinberg & Cavaliere, LLP, White Plains, N.Y. (Ronald W. Weiner of counsel), for appellants-respondents.

Charles M. Hymowitz, P.C., Brooklyn, N.Y., for respondent-appellant.

Before: Steven W. Fisher, J.P., Mark C. Dillon, Thomas A. Dickerson, Ariel E. Belen, JJ.

DECISION & ORDER

ORDERED that the order is modified, on the law, by deleting the provision thereof denying those branches of the defendants' motion which were for summary judgment dismissing the second and third causes of action and substituting therefor a provision granting those branches of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

In September 2002 the plaintiff retained the defendant Joseph A. Owen, a New York attorney, and his law firm, the defendant Owen Law Firm, PLLC, to represent him. The representation arose out of an accident that occurred on August 4, 2002, at a fair in Sussex County, New Jersey, when a swing the plaintiff sat on allegedly flipped over. The swing allegedly was owned or maintained by a New Jersey entity named Images of Our Own (hereinafter Images). By letter dated June 21, 2005, Owen withdrew as counsel, advising the plaintiff that New York's three-year statute of limitations was about to expire and to consult another attorney. The plaintiff alleged that the defendants failed to commence an action before the two-year statute of limitations expired in New Jersey, and, as a result, the plaintiff commenced this legal malpractice action.

An attorney is liable in a malpractice action if the plaintiff can prove that the attorney failed to exercise the skill commonly exercised by an ordinary member of the legal community and that such negligence was the proximate cause of damages (see Rudolph v Shayne, Dachs,...