Lefkowitz v. Lurie

• Decision Date: 28 September 1998
• Citation: 253 A.D.2d 855,678 N.Y.S.2d 345
• Parties: , 1998 N.Y. Slip Op. 8418 Jerry I. LEFKOWITZ, Appellant, v. Brett K. LURIE, Respondent, et al., Defendants.
• Court: New York Supreme Court — Appellate Division

Page 345

678 N.Y.S.2d 345

253 A.D.2d 855, 1998 N.Y. Slip Op. 8418

Jerry I. LEFKOWITZ, Appellant, v. Brett K. LURIE, Respondent, et al., Defendants.

Supreme Court, Appellate Division Second Department.

Sept. 28, 1998.

Fiedelman & McGaw, Jericho (Carol A. Moore, of counsel), for appellant.

Kilhenny & Felix, New York City (James M. Felix, of counsel), for respondent.

Before SULLIVAN, J.P., ALTMAN, FRIEDMANN and McGINITY, JJ.

MEMORANDUM BY THE COURT.

In an action to recover unpaid legal fees, the plaintiff appeals from an order of the Supreme Court, Nassau County (Lally, J.), entered July 11, 1997, which denied his motion for summary judgment dismissing the counterclaims of the defendant Brett K. Lurie.

ORDERED that the order is reversed, with costs, the motion is granted, and the counterclaims of the defendant Brett K. Lurie are dismissed.

The plaintiff seeks to recover fees purportedly owed to him by the defendants for his legal representation on their behalf in a related arbitration in which a judgment was entered against them. In his answer, the defendant Brett K. Lurie (hereinafter Lurie) asserted several counterclaims alleging that the plaintiff negligently failed to timely move to stay the arbitration as to him personally, and that but for this negligence, he would not have been personally subject to arbitration or the resulting judgment. The plaintiff subsequently moved for summary judgment dismissing Lurie's counterclaims. This motion was erroneously denied by the Supreme Court.

It is well settled that a claim of legal malpractice requires proof that the attorney "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 [client], and that but for the [attorney's] negligence, the [client] 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 also, Purificati v. Meyer & Diesenhouse, 243 A.D.2d 697, 665 N.Y.S.2d 308; Lavin & Kleiman v. Heinike Assocs., 221 A.D.2d 919;, 633 N.Y.S.2d 901 L.I.C. Commercial Corp. v. Rosenthal, 202 A.D.2d 644, 609 N.Y.S.2d 301). Thus, for the plaintiff to succeed on his motion for summary judgment dismissing Lurie's counterclaims sounding in legal malpractice, he was required to present evidence in admissible form establishing that Lurie was unable to prove one of these three essential elements (see, Purificati v. Meyer & Diesenhouse, supra; see also, Platt v. Portnoy, 220 A.D.2d 652, 632 N.Y.S.2d 659; Andrews...