John P. Tilden, Ltd. v. Profeta & Eisenstein

| N.Y. App. Div. | Feb 20, 1997

—Order, Supreme Court, New York County (Charles Ramos, J.), entered December 19, 1995, which, in a legal malpractice action, denied plaintiff’s motion for partial summary judgment and granted defendants’ cross motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

Plaintiff’s contention that had defendants timely served on opposing counsel plaintiff’s motion in the underlying action for leave to appeal to the Court of Appeals (Nestor v John P. Til-den, Ltd., 175 AD2d 43, lv dismissed 79 NY2d 849), the Court of Appeals would have granted leave to appeal and reversed this Court’s unanimous affirmance, and that a retrial of the issue of damages would have resulted in a more favorable outcome, was properly rejected as "too speculative” to raise a genuine issue of fact with respect to proximate cause (see, Sherwood Group v Dornbush, Mensch, Mandelstam & Silver-man, 191 AD2d 292), particularly since the basis of plaintiff’s purported argument to the Court of Appeals had not been raised before the trial court and was, therefore, not preserved for appellate review. Concur—Sullivan, J. P., Ellerin, Tom and Andrias, JJ.