Brooklyn Electrical Supply Co. v. Jasne & Florio

May 17, 2011
Versions:84 A.D.3d 997
922 N.Y.S.2d 804

In an action to recover damages for legal malpractice, the plaintiff appeals, as limited by its brief, from so much of an order of the Supreme Court, Nassau County (Phelan, J.), dated January 29, 2010, as granted the defendant's motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

The defendant established, prima facie, that the plaintiff, a dissolved corporation, lacked the capacity to sue because the plaintiff had been dissolved before the defendant was retained, and this legal malpractice action does not relate to the plaintiff's winding up of its corporate affairs (see Business Corporation Law § 1005 [a] [1]; § 1006 [a] [4]; [b]; Matter of 172 E. 122 St. Tenants Assn. v Schwarz, 73 NY2d 340, 348-349 [1989]; Moran Enters., Inc. v Hurst, 66 AD3d 972, 975-976 [2009]; 2 N. Broadway Food, Inc. v Anduze, 33 AD3d 992 [2006]; Syzygy Sys. Corp. v Bader, 243 AD2d 336 [1997]). The plaintiff failed to raise a triable issue of fact to rebut the defendant's prima facie showing of entitlement to judgment as a matter of law (see Lorisa Capital Corp. v Gallo, 119 AD2d 99, 110 [1986]).

Accordingly, the Supreme Court correctly granted the defendant's motion for summary judgment dismissing the complaint.

Covello, J.P., Eng, Chambers and Miller, JJ., concur.