Frankel v Vernon & Ginsburg, LLP
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.
Decided on December 6, 2012
Tom, J.P., Mazzarelli, Moskowitz, Abdus-Salaam, JJ.
Order, Supreme Court, New York County (Paul G. Feinman, J.), entered on or about October 20, 2011, which, insofar as appealed from as limited by the briefs, denied defendants' motion for summary judgment insofar as it sought dismissal of plaintiff's first cause of action, for legal malpractice, unanimously affirmed, without costs.
The IAS court properly declined to dismiss the legal malpractice cause of action. Defendants failed to sustain their burden on summary judgment of demonstrating that plaintiff would be unable to prove one of the essential elements of his claim (see Sabalza v Salgado, 85 AD3d 436 [1st Dept 2011]). On the contrary, the record demonstrated that plaintiff's decedent had viable causes of action for breach of the warranty of habitability and nuisance against defendants in the underlying action (see 61 W. 62 Owners Corp. v CGM EMP LLC, 77 AD3d 330 [1st Dept 2010], affd in part, mod in part 16 NY3d 822 ; Misra v Yedid, 37 AD3d 284, 285 [1st Dept 2007]). Furthermore, the record demonstrated that plaintiff's decedent might have recovered legal fees, which alone exceeded the amount of the settlement in this matter (Real Property Law § 234).
In light of the foregoing, we need not reach defendants' remaining contentions.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.
ENTERED: DECEMBER 6, 2012
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