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Philip Kovitz v. Wenig

SUPREME COURT OF THE STATE OF NEW YORK APPELLATE TERM: 2nd, 11th and 13th JUDICIAL DISTRICTS


April 26, 2011

PHILIP KOVITZ,
APPELLANT,
v.
WENIG, GINSBERG, SALTIEL AND GREENE, LLP,
RESPONDENT.

Appeal from a judgment of the Civil Court of the City of New York, Kings County (Richard Velasquez, J.), entered September 29, 2008.

Kovitz v Wenig, Ginsberg, Saltiel & Greene, LLP

Appellate Term, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 26, 2011

PRESENT: PESCE, P.J. WESTON and GOLIA, JJ

The judgment, after a non-jury trial, dismissed plaintiff's action.

ORDERED that the judgment is affirmed, without costs.

Plaintiff commenced this small claims action seeking to recover $2,000 as a result of defendant's alleged legal malpractice. At the non-jury trial, plaintiff testified that he had retained defendant to commence an action for illegal eviction "done by lock-out without a warrant." Plaintiff stated that defendant had repeatedly failed to properly serve a necessary party to the action, which had resulted in the dismissal of that action. Plaintiff further asserted that defendant had failed to verify the necessary party's residence or effectuate service through alternative methods. A partner in defendant's firm testified that her firm could not properly serve the necessary party because plaintiff had provided the firm with the party's incorrect addresses, and plaintiff had refused to pay the cost of an investigator to ascertain the party's actual residence. The partner further contended that, in any event, defendant had failed to prove his damages. The Civil Court found that plaintiff had failed to establish a prima facie case of legal malpractice and dismissed the action.

The decision of a fact-finding court should not be disturbed upon appeal unless it is obvious that the court's conclusions could not be reached under any fair interpretation of the evidence (see Claridge Gardens v Menotti, 160 AD2d 544 [1990]). This standard applies with greater force to judgments rendered in the Small Claims Part of the court (see Williams v Roper, 269 AD2d 125, 126 [2000]).

Plaintiff failed to establish a prima facie case of legal malpractice. "In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007] [internal quotation marks omitted]; see also Bilin v Segal, Goodman & Goodman, LLP, 81 AD3d 680 [2011]). "This requires a showing that but for the [attorney's] negligence . . . [the plaintiff] would have prevailed in the underlying action" (Walker v Glotzer, 79 AD3d 737 [2010], quoting Barnett v Schwartz, 47 AD3d 197, 203-204 [2007] [internal quotation marks omitted]). Unless the ordinary experience of the finder of fact provides a sufficient basis for judging the adequacy of the professional service, or the attorney's conduct falls below any standard of due care, expert testimony is also necessary to establish that the attorney breached a standard of professional care and skill (Demetriou v Connexion I Real Estate Servs., Inc., 24 Misc 3d 127[A], 2009 NY Slip Op 51278[U] [App Term, 2d, 11th & 13th Jud Dists 2009]).

Plaintiff failed to prove that defendant proximately caused any actual and ascertainable damages because he did not demonstrate that he would have been successful in the underlying illegal eviction proceeding (see Walker v Glotzer, 79 AD3d 737). Consequently, we need not reach the issue of whether defendant, in the first instance, "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442 [internal quotation marks omitted]).

Since the court's findings and conclusions are supported by the record, we find that the judgment provided the parties with substantial justice according to the rules and principles of substantive law (CCA 1804, 1807; Ross v Friedman, 269 AD2d 584 [2000]; Williams, 269 AD2d at 126). Accordingly, the judgment is affirmed.

Pesce, P.J., Weston and Golia, JJ., concur.

Decision Date: April 26, 2011

20110426

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