Ostriker v. Taylor, Atkins & Ostrow

• Decision Date: 16 February 1999
• Citation: 685 N.Y.S.2d 470,258 AD2d 572
• Parties: 1999 N.Y. Slip Op. 1496 Selma OSTRIKER, appellant, v. TAYLOR, ATKINS & OSTROW, et al., respondents.
• Court: New York Supreme Court — Appellate Division

Page 470

685 N.Y.S.2d 470

1999 N.Y. Slip Op. 1496

Selma OSTRIKER, appellant, v. TAYLOR, ATKINS & OSTROW, et al., respondents.

Supreme Court, Appellate Division,

Second Department.

Feb. 16, 1999.

Reingold & Tucker, P.C., Brooklyn, N.Y. (Abraham Reingold of counsel), for appellant.

L'Abbate, Balkan, Colavita & Contini, LLP, Garden City, N.Y. (Ralph A. Catalano of counsel), for respondents.

GUY JAMES MANGANO, P.J., THOMAS R. SULLIVAN, DANIEL W. JOY and MYRIAM J. ALTMAN, JJ.

MEMORANDUM BY THE COURT.

In an action to recover damages for legal malpractice, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Nassau County (Alpert, J.), dated September 23, 1997, as granted the defendants' cross motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

For a defendant in a legal malpractice case to succeed on a motion for summary judgment, evidence must be presented in admissible form establishing that the plaintiff is unable to prove at least one of the three essential elements of a malpractice cause of action (see, Greene v. Payne, Wood and Littlejohn, 197 A.D.2d 664, 602 N.Y.S.2d 883; see also, Platt v. Portnoy, 220 A.D.2d 652, 632 N.Y.S.2d 659; Andrews Beverage Distrib. v. Stern, 215 A.D.2d 706, 627 N.Y.S.2d 423; L.I.C. Commercial Corp. v. Rosenthal, 202 A.D.2d 644, 609 N.Y.S.2d 301). Here, the record establishes that the plaintiff ultimately prevailed in a portion of the underlying action based upon the evidence presented to the trial court by the defendants (see, Zarin v. Reid & Priest, 184 A.D.2d 385, 585 N.Y.S.2d 379). With respect to the plaintiff's other claims of malpractice, the defendants made a prima facie showing that the plaintiff could not prove that but for any negligence on their part she would have prevailed in the other portions of the underlying action, and the plaintiff failed to submit any evidence to the contrary. Thus, the trial court properly granted the defendants' cross motion for summary judgment dismissing the complaint.

The plaintiff's remaining contentions are without merit.