SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Fourth Judicial Department
December 31, 2008
GEORGE EAGAN GINTHER, PLAINTIFF-APPELLANT,
HOWARD S. ROSENHOCH, ESQ. AND JAECKLE, FLEISCHMANN & MUGEL, LLP, DEFENDANTS-RESPONDENTS.
Appeal from an order and judgment (one paper) of the Supreme Court, Erie County (Kevin M. Dillon, J.), entered December 8, 2006 in a legal malpractice action. The order and judgment, among other things, granted defendants' motion for summary judgment.
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and subject to revision before publication in the Official Reports.
PRESENT: CENTRA, J.P., FAHEY, PERADOTTO, GREEN, AND GORSKI, JJ.
It is hereby ORDERED that the order and judgment so appealed from is unanimously affirmed without costs.
Supreme Court properly granted defendants' motion for summary judgment dismissing the complaint in this legal malpractice action. "In order to establish their entitlement to judgment as a matter of law, defendants had to present evidence in admissible form establishing that plaintiffs are unable to prove at least one necessary element of a legal malpractice action" (Potter v Polozie, 303 AD2d 943, 943). One necessary element of such a cause of action is that, " but for the [defendants'] negligence, the plaintiff would have been successful in the underlying action' " (Oot v Arno, 275 AD2d 1023, 1023). Here, plaintiff alleges that defendants committed legal malpractice by, among other things, failing to assert a counterclaim in the underlying action, for recovery of premiums paid by plaintiff under a disability insurance policy. We note, however, that the Second Circuit affirmed the judgment of the District Court in favor of the plaintiff insurer in the underlying action on the sole ground that the claim for benefits made by defendant, the plaintiff herein, was untimely under the policy (Provident Life & Cas. Ins. Co. v Ginther, 51 Fed Appx 72). Thus, it cannot be said that, but for defendants' negligence, plaintiff would have been successful on a counterclaim for recovery of premiums in the underlying action (see Oot, 275 AD2d 1023).
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