WILLIAMS v. et al., Defendant. (2003)

 Supreme Court erred in denying plaintiff's cross motion for partial summary judgment against Jan S. Kublick and Davoli, McMahon and Kublick, P.C. (defendants) in this legal malpractice action.   Defendants had represented plaintiff in an action that was dismissed for failure to serve a bill of particulars and in a second action that was dismissed for failure to prosecute.  “[A] cause of action for legal malpractice requires proof that the attorney ‘failed to exercise that degree of care, skill and diligence commonly possessed and exercised by an ordinary member of the legal community, that such negligence was the proximate cause of the actual damages sustained by [plaintiff], and that[,] but for the [attorney's] negligence, [plaintiff] would have been successful in the underlying action[s]’ ” (Lavin & Kleiman v. Heinike Assoc., 221 A.D.2d 919, 919, 633 N.Y.S.2d 901, quoting 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;  see Oot v. Arno, 275 A.D.2d 1023, 713 N.Y.S.2d 382;  Rau v. Borenkoff, 262 A.D.2d 388, 388 389, 691 N.Y.S.2d 140;  Campcore, Inc. v. Mathews, 261 A.D.2d 870, 689 N.Y.S.2d 814, lv. denied 93 N.Y.2d 814, 697 N.Y.S.2d 561, 719 N.E.2d 922, rearg. denied 94 N.Y.2d 839, 702 N.Y.S.2d 587, 724 N.E.2d 379).   Defendants contend that the court properly denied the cross motion because plaintiff failed to establish that he would have been successful in the underlying actions.   Upon our review of the record, we conclude that plaintiff cross-moved in the alternative for partial summary judgment only with respect to the issue of defendants' negligence (see e.g. Shaughnessy v. Baron, 151 A.D.2d 561, 561-562, 542 N.Y.S.2d 341) rather than the issue of defendants' liability for malpractice (see e.g. Iannarone v. Gramer, 256 A.D.2d 443, 444-445, 682 N.Y.S.2d 84), however, and thus plaintiff was not required at this juncture to establish that he would have been successful in the underlying actions.   Plaintiff met his initial burden by establishing that defendants were negligent in failing to serve the proper pleadings in a timely manner (see generally Shapiro v. Butler, 273 A.D.2d 657, 658, 709 N.Y.S.2d 687), and defendants failed to raise a triable issue of fact.   We reject defendants' further contention that more discovery was required with respect to the issue of defendants' negligence.   In opposing the cross motion, defendants' counsel argued that plaintiff may have contributed to the dismissal of the prior actions.   Defendants, however, made no showing that the facts necessary to support that contention are within plaintiff's exclusive knowledge and possession (see CPLR 3212[f];  Lavin & Kleiman, 221 A.D.2d 919, 633 N.Y.S.2d 901).

It is hereby ORDERED that the order insofar as appealed from be and the same hereby is unanimously reversed on the law without costs and the cross motion is granted.

MEMORANDUM: