Nicholas Antonelli et al., Appellants, v Steven Guastamacchia et al., Defendants, and Steven Decker, Esq., et al., Respondents. (And a Third-Party Action.)
Supreme Court, Appellate Division, Second Department, New York
September 23, 2015
17 NYS3d 436
Dillon, J.P., Chambers, Austin and Sgroi, JJ.
Ordered that the order is affirmed insofar as appealed from, with costs.
“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], quoting McCoy v Feinman, 99 NY2d 295, 301 [2002]; see Rehberger v Garguilo & Orzechowski, LLP, 118 AD3d 767 [2014]). “To establish causation, a plaintiff must show that he or she would
Here, the plaintiffs alleged that the defendants Steven Decker, Esq., and Decker, Decker, Dito & Internicola, LLP (hereinafter together the Decker defendants) represented them in a real estate venture in which the plaintiff Nicholas Antonelli loaned the defendant Steven Guastamacchia the sum of $600,000, and that the plaintiffs sustained damages when Guastamacchia failed to repay the loan. In support of their motion for summary judgment dismissing the complaint, the Decker defendants established, prima facie, that even if they “‘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, quoting McCoy v Feinman, 99 NY2d at 301-302), any such failure was not a proximate cause of the plaintiffs’ alleged damages when Guastamacchia did not repay the loan. In opposition, the plaintiffs failed to raise a triable issue of fact (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]; Hashmi v Messiha, 65 AD3d 1193, 1195 [2009]; see also Unger v Paul Weiss Rifkind Wharton & Garrison, 265 AD2d 156 [1999]).
The plaintiffs’ causes of action against Decker alleging breach of fiduciary duty (see EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]), aiding and abetting breach of fiduciary duty (see Kaufman v Cohen, 307 AD2d 113, 125 [2003]), fraud (see Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009]), and aiding and abetting fraud (see Stanfield Offshore Leveraged Assets, Ltd. v Metropolitan Life Ins. Co., 64 AD3d 472, 476 [2009]), arise from the same facts as those underlying the second cause of action against the Decker defendants, which alleged legal malpractice, and do not allege distinct damages. Accordingly, those branches of the motion which were for summary judgment dismissing those causes of action were properly granted, since those causes of action were
The plaintiffs’ remaining arguments are either not properly before this Court on appeal or without merit.
Accordingly, the Supreme Court properly granted that branch of the motion of the Decker defendants which was for summary judgment dismissing the complaint insofar as asserted against them. Dillon, J.P., Chambers, Austin and Sgroi, JJ., concur.