Cullin v. Spiess

• Decision Date: 19 November 2014
• Parties: Karen CULLIN, appellant, v. James SPIESS, etc., respondent.
• Court: New York Supreme Court — Appellate Division

122 A.D.3d 792

997 N.Y.S.2d 460

2014 N.Y. Slip Op. 07975

Karen CULLIN, appellant,

v.James SPIESS, etc., respondent.

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

Nov. 19, 2014

Paul W. Haug, Medford, N.Y., for appellant.

L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Noah Nunberg and Meredith D. Belkin of counsel), for respondent.

PETER B. SKELOS, J.P., SHERI S. ROMAN, SYLVIA O. HINDS–RADIX, and HECTOR D. LaSALLE, JJ.

In an action, inter alia, to recover damages for negligent misrepresentation, legal malpractice, and violations of Judiciary Law § 487, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Pastoressa, J.), dated August 23, 2012, which denied her motion for summary judgment on the complaint and granted the defendant's cross motion for summary judgment dismissing the fourth, sixth, eighth, and twelfth causes of action.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action against the defendant, her former attorney, alleging, inter alia, that he committed legal malpractice, made negligent misrepresentations, and violated Judiciary Law § 487, in connection with the settlement of a contested probate proceeding in which the defendant represented the plaintiff. The plaintiff moved for summary judgment on the complaint and the defendant cross-moved for summary judgment dismissing the fourth, sixth, eighth, and twelfth causes of action, all of which alleged violations of Judiciary Law § 487(1). The Supreme Court denied the plaintiff's motion and granted the defendant's cross motion.

The plaintiff failed to demonstrate her prima facie entitlement to judgment as a matter of law on the complaint. The plaintiff failed to submit, with her moving papers, an affidavit by a person with knowledge of the facts ( see CPLR 3212[b]; Currie v. Wilhouski, 93 A.D.3d 816, 817, 941 N.Y.S.2d 218; Menzel v. Plotnick, 202 A.D.2d 558, 559, 610 N.Y.S.2d 50). The affirmation of the plaintiff's attorney, who did not have personal knowledge of the facts, was without probative value, and the remaining exhibits were insufficient to support the motion for summary judgment ( see Zuckerman v. City of New York, 49 N.Y.2d 557, 563, 427 N.Y.S.2d 595, 404 N.E.2d 718; Rivers v. Birnbaum, 102 A.D.3d 26, 953 N.Y.S.2d 232; 1911 Richmond Ave. Assoc., LLC v. G.L.G. Capital, LLC, 60 A.D.3d 1021, 1022, 876 N.Y.S.2d 151; Menzel v. Plotnick, 202 A.D.2d at 559, 610 N.Y.S.2d 50).

In contrast, the defendant demonstrated his prima facie entitlement to judgment as a matter of law dismissing the fourth, sixth, eighth, and twelfth causes of action alleging that he violated Judiciary Law §...