RIGBY v. Leonard London, Defendant-Respondent. (2004)

 Plaintiff commenced this action to recover damages arising from the dismissal of her personal injury action pursuant to CPLR 3216 as the alleged result of defendants' legal malpractice.   Supreme Court properly denied the motion of defendants David Share and David Share Associates (collectively, Share defendants) seeking summary judgment dismissing the complaint against them.   Those defendants failed to meet their burden of establishing as a matter of law that they were not negligent in failing to serve the note of issue in a timely manner or to make an adequate showing of merit in response to the CPLR 3216 motion.   Nor did the Share defendants establish that plaintiff is unable to prove that she would have been successful in the underlying action but for the negligence of the Share defendants (see generally McKenna v. Forsyth & Forsyth, 280 A.D.2d 79, 82, 720 N.Y.S.2d 654, lv. denied 96 N.Y.2d 720, 733 N.Y.S.2d 372, 759 N.E.2d 371;  cf. Potter v. Polozie, 303 A.D.2d 943, 944, 757 N.Y.S.2d 418).   In any event, plaintiff submitted proof sufficient to raise triable issues of fact whether the Share defendants were negligent and whether their negligence proximately caused her loss (see Potter, 303 A.D.2d at 944, 757 N.Y.S.2d 418).

 The court properly granted the motion of defendant Leonard London seeking summary judgment dismissing the complaint against him.   London submitted proof establishing that he had no attorney-client relationship with plaintiff (see Volpe v. Canfield, 237 A.D.2d 282, 283, 654 N.Y.S.2d 160, lv. denied 90 N.Y.2d 802, 660 N.Y.S.2d 712, 683 N.E.2d 335;  C.K. Indus. Corp. v. C.M. Indus. Corp., 213 A.D.2d 846, 847-848, 623 N.Y.S.2d 410) and that, in any event, any negligence on his part was not a proximate cause of plaintiff's loss (see Perks v. Lauto & Garabedian, 306 A.D.2d 261, 262, 760 N.Y.S.2d 231).   Plaintiff, in response to London's motion, failed to raise a triable issue of fact (see CPLR 3212[b] ).

It is hereby ORDERED that the order so appealed from be and the same hereby is unanimously affirmed without costs.

MEMORANDUM: