L.I.C. Commercial Corp. v. Rosenthal

• Decision Date: 28 March 1994
• Citation: 202 A.D.2d 644,609 N.Y.S.2d 301
• Parties: L.I.C. COMMERCIAL CORP., Appellant, v. Norman L. ROSENTHAL, Respondent.
• Court: New York Supreme Court — Appellate Division

Page 301

609 N.Y.S.2d 301

202 A.D.2d 644

L.I.C. COMMERCIAL CORP., Appellant, v. Norman L. ROSENTHAL, Respondent.

Supreme Court, Appellate Division Second Department.

March 28, 1994.

Mait, Wang & Simmons, New York City (William R. Mait, Robert Wang, Michael C. Simons and Herbert M. Levy, of counsel), for appellant.

Rivkin, Radler & Kremer, Uniondale (Norman L. Rosenthal and Evan H. Krinick, of counsel), for respondent.

Before SULLIVAN, J.P., and MILLER, JOY and FRIEDMANN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for legal malpractice, the plaintiff appeals (1) as limited by its brief, from so much of an order of the Supreme Court, Queens County (Lonschein, J.), dated September 17, 1991, as denied its motion for partial summary judgment on the issue of liability and granted the branch of the defendant's cross motion which was for summary judgment dismissing the complaint; and (2) from a judgment of the same court, dated January 9, 1992, which dismissed the complaint.

ORDERED that the appeal from the order is dismissed; and it is further ORDERED that the judgment is affirmed; and it is further,

ORDERED that the respondent is awarded one bill of costs.

The appeal from the intermediate order must be dismissed because the right of direct appeal therefrom terminated with the entry of judgment in the action (see, Matter of Aho, 39 N.Y.2d 241, 248, 383 N.Y.S.2d 285, 347 N.E.2d 647). The issues raised on appeal from the order are brought up for review and have been considered on the appeal from the judgment (see, CPLR 5501[a][1].

The Supreme Court acted properly in granting the branch of the defendant's cross motion which was for summary judgment dismissing the complaint. It is well settled that a claim of legal malpractice requires proof that the defendant "failed to exercise that degree of care, skill and diligence commonly possessed and exercised by an ordinary member of the legal community, that such negligence was the proximate cause of the actual damages sustained by the [plaintiff], and that but for the [defendant's] negligence, the [plaintiff] would have been successful in the underlying action" (Logalbo v. Plishkin, Rubano & Baum, 163 A.D.2d 511, 513, 558 N.Y.S.2d 185; see, Raphael v. Clune, White & Nelson, 201 A.D.2d 549, 607 N.Y.S.2d 734). The plaintiff failed to make such a showing.

The plaintiff contends that the defendant was negligent in failing to call a certain witness during the trial of an action for specific performance of a contract for the sale of real property. However, the witness was deposed in this action and his testimony was confusing and generally unfavorable to the plaintiff's position in the underlying specific performance action. Accordingly, we find that the defendant's determination not to call the witness in the underlying action was clearly a reasonable strategic decision which did not constitute malpractice (see, Rosner v. Paley, 65 N.Y.2d 736, 492 N.Y.S.2d 13, 481 N.E.2d 553; ...