Case Information

Marian Levy et al., Appellants, v William Greenberg et al., Respondents.

Supreme Court, Appellate Division, Second Department, New York

798 NYS2d 443

In an action to recover damages for legal malpractice, the plaintiffs appeal from an order of the Supreme Court, Kings County (Hurkin-Torres, J.), dated July 21, 2004, which granted the defendants' motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed, with costs.

"On a cause of action to recover damages for legal malpractice, a plaintiff must prove that the defendant failed to exercise the care, skill, and diligence commonly possessed and exercised by a member of the legal profession, that the defendant's negligence was a proximate cause of the loss sustained, that the plaintiff incurred actual damages as a result of the defendant's actions or inaction, and that but for the defendant's negligence, the plaintiff would have prevailed in the underlying action or would not have sustained any damages" (Pistilli v Gandin, 10 AD3d 353, 354 [2004]). "For a defendant in a legal malpractice case to succeed on a motion for summary judgment, evidence must be presented in admissible form establishing that the plaintiff is unable to prove at least one of the essential elements" (id.).

Here, the defendants established their entitlement to judgment as a matter of law by demonstrating that the plaintiffs would be unable to prove that "but for" the alleged negligence, the plaintiffs would have prevailed in the underlying action. In opposition, the plaintiffs failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint.

The plaintiffs' remaining contentions are without merit.

Florio, J.P., Schmidt, Santucci and Rivera, JJ., concur.