Gaskin v. Harris

• Decision Date: 12 September 2012
• Citation: 2012 N.Y. Slip Op. 06123,950 N.Y.S.2d 751,98 A.D.3d 941
• Parties: Eleanor GASKIN, appellant, v. Richard T. HARRIS, respondent.
• Court: New York Supreme Court — Appellate Division

98 A.D.3d 941
950 N.Y.S.2d 751
2012 N.Y. Slip Op. 06123

Eleanor GASKIN, appellant,
v.
Richard T. HARRIS, respondent.

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

Sept. 12, 2012.

[950 N.Y.S.2d 752]

Eleanor Gaskin, Brooklyn, N.Y., appellant pro se.

L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Diane P. Whitfield and Scott E. Kossove of counsel), for respondent.

REINALDO E. RIVERA, J.P., ANITA R. FLORIO, RANDALL T. ENG, and JEFFREY A. COHEN, JJ.

In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Vaughan, J.), dated March 31, 2011, which denied her motion, in effect, for summary judgment on the complaint, and granted the defendant's cross motion pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendant's cross motion which was to pursuant to CPLR 3211(a)(1) and (7) to dismiss the cause of action alleging legal malpractice, and substituting therefor a provision denying that branch of the cross motion; as so modified, the order is affirmed, without costs or disbursements.

The Supreme Court properly denied the plaintiff's motion, in effect, for summary judgment on the complaint. “A motion for summary judgment may not be made before issue is joined (CPLR 3212[a] ) and the requirement is strictly adhered to” ( City of Rochester v. Chiarella, 65 N.Y.2d 92, 101, 490 N.Y.S.2d 174, 479 N.E.2d 810). Here, the plaintiff moved, in effect, for summary judgment simultaneously with her commencement of this action, and, thus, before issue could be joined. Under these circumstances, the Supreme Court was powerless to grant summary judgment ( see Union Turnpike Assoc., LLC v. Getty Realty Corp., 27 A.D.3d 725, 727–728, 812 N.Y.S.2d 628;Chakir v. Dime Sav. Bank of N.Y., 234 A.D.2d 577, 651 N.Y.S.2d 622;see also Shaibani v. Soraya, 71 A.D.3d 1121, 898 N.Y.S.2d 72).

However, the Supreme Court should not have granted that branch of the defendant's cross motion which was to pursuant to CPLR 3211(a)(1) and (7) to dismiss the cause of action alleging legal malpractice. To recover damages for legal malpractice, a plaintiff is required to show that the defendant 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 caused the plaintiff to suffer actual and ascertainable damages ( see Dombrowski v. Bulson, 19 N.Y.3d 347, 350, 948 N.Y.S.2d 208, 971 N.E.2d 338;Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385;McCoy v. Feinman, 99 N.Y.2d 295, 301–302, 755 N.Y.S.2d 693, 785 N.E.2d 714;Gershkovich v. Miller, Rosado & Algios, LLP, 96 A.D.3d 716, 717, 945 N.Y.S.2d 567). When determining a motion to dismiss pursuant to CPLR 3211(a)(7) for failure to state a cause of action, the court must accept the facts alleged in the pleading as true, accord the plaintiff the benefit of every possible inference, and determine only whether the facts as alleged fit within any cognizable legal theory ( see

[950 N.Y.S.2d 753]

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