Argued-May 2, 2017
Edward Brady, P.C., Howard Beach, NY (Robert G. Bombara of
counsel), for appellant-respondent.
Jakubowski, Robertson, Maffei, Goldsmith & Tartaglia, LLP
(Sweetbaum & Sweetbaum, Lake Success, NY [Marshall D.
Sweetbaum], of counsel), for respondents-appellants.
C. BALKIN, J.P. CHERYL E. CHAMBERS JOSEPH J. MALTESE COLLEEN
D. DUFFY, JJ.
DECISION & ORDER
action to recover damages for legal malpractice, the
plaintiff appeals, as limited by his brief, from so much of
an order of the Supreme Court, Nassau County (McCormack, J.),
entered April 21, 2015, as denied his cross motion for
summary judgment on the issue of liability and to impose
sanctions upon the defendants' attorney pursuant to 22
NYCRR 130-1.1, and the defendants cross-appeal from so much
of the same order as denied their motion for summary judgment
dismissing the complaint.
that the order is affirmed insofar as appealed and
cross-appealed from, without costs or disbursements.
summary judgment motions in the same action should be
discouraged in the absence of a showing of newly discovered
evidence or other sufficient cause (see Valley Natl. Bank
v INI Holding, LLC, 95 A.D.3d 1108). However, under the
circumstances of this case, the Supreme Court improvidently
exercised its discretion in denying the plaintiff's cross
motion for summary judgment as a successive motion, and
declining to reach the merits on the issue of liability (see
Town of Angelica v Smith, 89 A.D.3d 1547, 1549).
recover damages for legal malpractice, a plaintiff must
establish that the defendant attorney failed to exercise the
ordinary reasonable skill and knowledge commonly possessed by
a member of the legal profession, and that the breach of this
duty proximately caused the plaintiff to sustain actual and
ascertainable damages'" (Atiencia v
Pinczewski, 148 A.D.3d 860, 860, quoting Rojas v
Paine, 125 A.D.3d 745, 746; see Rudolf v Shayne,
Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442;
McCoy v Feinman, 99 N.Y.2d 295, 301-302). "To
establish causation, a plaintiff must show that he or she
would have prevailed in the underlying action or would not
have incurred any damages, but for the lawyer's
negligence" (Rudolf v Shayne, Dachs, Stanisci,
Corker & Sauer, 8 N.Y.3d at 442; see Davis v
Klein, 88 N.Y.2d 1008, 1009-1010; Keness v Feldman,
Kramer &Monaco, P.C., 105 A.D.3d 812, 813). "To
succeed on a motion for summary judgment dismissing the
complaint in a legal malpractice action, the defendant must
present evidence in admissible form establishing that the
plaintiff is unable to prove at least one essential element
of his or her cause of action alleging legal
malpractice" (Scartozzi v Potruch, 72 A.D.3d
787, 789-790; see Suydam v O'Neill, 276 A.D.2d
contrary to the Supreme Court's determination, the
defendants failed to establish their prima facie entitlement
to judgment as a matter of law dismissing the complaint. The
defendants' submissions in support of their motion for
summary judgment did not establish, prima facie, that the
plaintiff will be unable to prove at least one element of his
legal malpractice claim (see Kempf v Magida, 116
A.D.3d 736, 736; Barnave v Davis, 108 A.D.3d 582;
Alizio v Feldman, 82 A.D.3d 804). Furthermore, the
defendants failed to establish, prima facie, that the
plaintiff did not sustain "actual and ascertainable
damages" as a result of the defendants' alleged
neglect of the underlying action (Rudolf v Shayne, Dachs,
Stanisci, Corker & Sauer, 8 N.Y.3d at 442; see
Suydam v O'Neill, 276 A.D.2d at 550).
addition, the plaintiff s opposition papers raised a triable
issue of fact as to whether the defendants' lengthy delay
in prosecuting the underlying action was a proximate cause of
the plaintiffs loss (see Shopsin v Siben &
Siben, 268 A.D.2d 578, 578-579). The plaintiffs reliance
upon the same evidence in support of that branch of his cross
motion which was for summary judgment on the issue of
liability was similarly insufficient to establish a prima
facie case of legal malpractice (see Feldman v
Finkelstein & Partners, LLP, 131 A.D.3d 505, 507).
Accordingly, the Supreme Court properly denied the
defendants' motion for summary judgment dismissing the
complaint and that branch of the plaintiffs cross motion
which was for summary judgment on the issue of liability.
to the plaintiff's contention, he failed to establish
that the conduct of the defendants' counsel was
frivolous. Accordingly, the Supreme Court providently
exercised its discretion in denying that branch of his cross
motion which was to ...