ACCADIA SITE CONTRACTING INC PLAINTIFF APPELLANT v. LIPSITZ GREEN SCIME CAMBRIA LLP AND JOSEPH MANNA INDIVIDUALLY AND AS PARTNER OF LIPSITZ GREEN SCIME CAMBRIA LLP DEFENDANTS RESPONDENTS (2018)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously modified on the law by granting the motion in part and dismissing the counterclaim and as modified the order is affirmed without costs.

Memorandum:  Plaintiff commenced this action for legal malpractice alleging that defendants acted negligently while representing it in an action involving a construction dispute.  We previously affirmed the order and judgment granting the motion of the defendant in the underlying action for summary judgment dismissing the complaint (Accadia Site Contr., Inc. v. Erie County Water Auth., 115 AD3d 1351, 1351–1353 [4th Dept 2014] ).  Contrary to plaintiff's contentions, we conclude that Supreme Court properly granted defendants' cross motion for summary judgment seeking dismissal of the complaint herein.  Defendants established that they did not fail to exercise the appropriate degree of care, skill, and diligence in representing plaintiff, and that any breach of their duty could not have been a proximate cause of plaintiff's damages, and plaintiff failed to raise a triable issue of fact to defeat the cross motion (see Chamberlain, D'Amanda, Oppenheimer & Greenfield, LLP v Wilson, 136 AD3d 1326, 1327–1328 [4th Dept 2016], lv dismissed 28 NY3d 942 [2016];  see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562 [1980] ).  Defendants concede in their brief that, prior to the issuance of the order on appeal, the parties settled their dispute over the attorneys' fees that were the subject of defendants' counterclaim.  We therefore modify the order by granting that part of plaintiff's motion pursuant to CPLR 3211 seeking dismissal of the counterclaim.

Mark W. Bennett

Clerk of the Court