LEDERER DE PARIS FIFTH AVENUE INC v. [And Another Action]. (2008)

Order, Supreme Court, New York County (Barbara R. Kapnick, J.), entered June 6, 2007, which, in these consolidated actions for legal malpractice and unpaid legal fees, denied plaintiff Lederer de Paris Fifth Avenue's motion for partial summary judgment on the issue of defendants' negligence and granted defendants' cross motion for summary judgment dismissing the legal malpractice complaint and on Jordan and Hamburg's claim for unpaid legal fees, unanimously affirmed, with costs.

Plaintiff's contention that the motion court failed to consider plaintiff's principal's deposition testimony is belied by the motion court's observation that none of plaintiff's exhibits, which included the deposition excerpts, was dispositive.   In any event, the deposition testimony plaintiff relies on was not sufficient to make a prima facie showing of entitlement to summary judgment (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 [1986];  Smith v. Cohen, 24 A.D.3d 183, 806 N.Y.S.2d 29 [2005] ).

The record supports the motion court's conclusion that Lederer failed to establish that its failure to produce certain documents in the underlying action, resulting in the preclusion order, was the result of defendants' negligence rather than the “intransigence” of plaintiff's principal.   In any event, Lederer fails to show that it suffered any actual damages as a result of defendants' conduct (see Postel v. Jaffe & Segal, 237 A.D.2d 127, 654 N.Y.S.2d 25 [1997] ).