Gershkovich v. Miller, Rosado & Algios, LLP

• Decision Date: 06 June 2012
• Citation: 2012 N.Y. Slip Op. 04318,945 N.Y.S.2d 567,96 A.D.3d 716
• Parties: Tibor GERSHKOVICH, et al., respondents, v. MILLER, ROSADO & ALGIOS, LLP, et al., appellants.
• Court: New York Supreme Court — Appellate Division

96 A.D.3d 716

945 N.Y.S.2d 567

2012 N.Y. Slip Op. 04318

Tibor GERSHKOVICH, et al., respondents,

v.MILLER, ROSADO & ALGIOS, LLP, et al., appellants.

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

June 6, 2012.

Garcia & Stallone, Deer Park, N.Y. (Karl Zamurs of counsel), for appellant Miller, Rosado & Algios, LLP.

Certilman Balin Adler & Hyman, LLP, East Meadow, N.Y. (Paul B. Sweeney of counsel), for appellant Arthur Welsher.

Roman Popik, P.C. (Mischel & Horn, P.C., New York, N.Y. [Scott T. Horn], of counsel), for respondents.

In an action, inter alia, to recover damages for legal malpractice, the defendant Miller, Rosado & Algios, LLP, appeals, as limited by its brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated February 15, 2011, as denied that branch of its motion which was for summary judgment dismissing the legal malpractice cause of action insofar as asserted by the plaintiffs Tibor Gershkovich and Galina Gershkovich against it, and the defendant Arthur Welsher separately appeals, as limited by his brief, from so much of the same order as denied that branch of his motion which was for summary judgment dismissing the legal malpractice cause of action insofar as asserted by the plaintiffs Tibor Gershkovich and Galina Gershkovich against him.

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

In order to prevail in an action to recover damages for legal malpractice, a plaintiff must establish that the defendant failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages ( see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385;Malik v. Beal, 54 A.D.3d 910, 911, 864 N.Y.S.2d 153;Carrasco v. Pena & Kahn, 48 A.D.3d 395, 396, 853 N.Y.S.2d 84). “To succeed on a motion for summary judgment dismissing the complaint in a legal malpractice action, the defendant must present evidence in admissible form establishing that the plaintiff is unable to prove at least one essential element of his or her cause of action alleging legal malpractice” ( Scartozzi v. Potruch, 72 A.D.3d 787, 789–790, 898 N.Y.S.2d 252;see Boglia v. Greenberg, 63 A.D.3d 973, 974, 882 N.Y.S.2d 215;Carrasco v. Pena & Kahn, 48 A.D.3d at 396, 853 N.Y.S.2d 84).

Here, the Supreme Court properly determined that the defendant Arthur Welsher failed to establish, prima facie, that the plaintiffs Tibor Gershkovich and Galina Gershkovich (hereinafter together the respondents) were unable to prove the essential elements of their legal malpractice cause of action insofar as asserted against that defendant ( see Gelobter v. Fox, 90 A.D.3d 829, 831, 935 N.Y.S.2d 59;Suppiah v. Kalish, 76 A.D.3d 829, 832, 907 N.Y.S.2d 199;Ali v. Fink, 67 A.D.3d 935, 937, 890 N.Y.S.2d 576;Terio v. Spodek, 25 A.D.3d 781, 785, 809 N.Y.S.2d 145;see also M & R Ginsburg, LLC v. Segal, Goldman, Mazzotta & Siegel, P.C., 90 A.D.3d 1208, 1209, 934 N.Y.S.2d 269).

The Supreme Court also properly determined that although the defendant Miller, Rosado &...