AGATE v. Arthus Jakoby, Esq., et al., Defendants. (2008)

Order, Supreme Court, New York County (Louis B. York, J.), entered September 11, 2006, which, in an action for legal malpractice arising out of defendants' joint representation of plaintiff and another client (Edward A. Kaminsky) in a dispute involving their purchase of securities that was resolved by arbitration, granted defendants' motion for summary judgment dismissing the amended complaint, unanimously affirmed, without costs.

We affirm for reasons stated in Kaminsky v. Herrick, Feinstein LLP, et al., --- A.D.3d ----, 870 N.Y.S.2d 1 (2008) namely, the failure to demonstrate any legal basis upon which a trier of fact might find that the alleged omission of defendants to present further expert testimony concerning plaintiffs' damages would have resulted in a higher award by the arbitration panel.   Thus, since plaintiff cannot establish that, but for the alleged negligence of his attorneys, the outcome of the underlying matter would have been substantially different (see AmBase Corp. v. Davis Polk & Wardwell, 8 N.Y.3d 428, 434, 834 N.Y.S.2d 705, 866 N.E.2d 1033 [2007];  N.A. Kerson Co. v. Shayne, Dachs, Weiss, Kolbrenner, Levy & Levine, 45 N.Y.2d 730, 732, 408 N.Y.S.2d 475, 380 N.E.2d 302 [1978] ), his cause of action is deficient, and dismissal is required (Katash v. Richard Kranis, P.C., 229 A.D.2d 305, 306, 644 N.Y.S.2d 276 [1996], lv. dismissed 89 N.Y.2d 981, 656 N.Y.S.2d 739, 678 N.E.2d 1355 [1997] ).