SCANIO v. PALMIERE PELLEGRINO (1998)

 Supreme Court properly granted defendants' motion for summary judgment dismissing the complaint.   Defendants met their burden of establishing prima facie that, in representing plaintiff on a Federal criminal indictment, they exercised “that degree of care, skill and diligence commonly possessed and exercised by an ordinary member of the legal community” (Logalbo v. Plishkin, Rubano & Baum, 163 A.D.2d 511, 513, 558 N.Y.S.2d 185, lv. dismissed 77 N.Y.2d 940, 569 N.Y.S.2d 613, 572 N.E.2d 54).   Plaintiff's conclusory assertions in response fail to raise an issue of fact whether defendants' conduct fell short of those standards (see, Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).   Further, despite plaintiff's characterization of the action as one for breach of contract, “the complaint in actuality sounds exclusively in legal malpractice, inasmuch as it is premised on allegations arising from the defendant[s'] purportedly inadequate legal representation of [plaintiff]” (Gill v. Blau, 234 A.D.2d 506, 507, 651 N.Y.S.2d 182;  see, Kaplan v. Sachs, 224 A.D.2d 666, 667, 639 N.Y.S.2d 69, lv. dismissed and denied 88 N.Y.2d 952, 647 N.Y.S.2d 708, 670 N.E.2d 1339).   Because plaintiff is precluded by his Federal conviction from pleading and proving his innocence in this action, plaintiff is unable to state a cause of action for legal malpractice (see, Carmel v. Lunney, 70 N.Y.2d 169, 173, 518 N.Y.S.2d 605, 511 N.E.2d 1126;  Gill v. Blau, supra, at 507, 651 N.Y.S.2d 182).   Finally, to the extent that the complaint seeks damages different from or greater than those customarily recoverable for breach of contract, the Statute of Limitations has expired with respect to that relief sought (see, CPLR 214 [former (6) ] [prior to 1996 amendment];  Santulli v. Englert, Reilly & McHugh, 78 N.Y.2d 700, 707, 579 N.Y.S.2d 324, 586 N.E.2d 1014;  see also, Romeo v. Schmidt, 244 A.D.2d 860, 665 N.Y.S.2d 228).

Order unanimously affirmed without costs.

MEMORANDUM: