CAMPBELL v. TAMSEN (2007)

In an action, inter alia, to recover damages for legal malpractice and breach of contract, the defendant Timothy Tamsen appeals, and the defendants Michael Forrester, Sol Lesser, Barry Silver, and Silver, Forrester, Schisano, Lesser & Dreyer, f/k/a Silver, Forrester, Schisano, Lesser & Tamsen separately appeal, from an order of the Supreme Court, Dutchess County (Pagones, J.), dated October 17, 2005, which denied the joint motion of the defendant Timothy Tamsen and the defendants Michael Forrester, Sol Lesser, Barry Silver, and Silver, Forrester, Schisano, Lesser & Dreyer, f/k/a Silver, Forrester, Schisano, Lesser & Tamsen, for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the joint motion for summary judgment dismissing the complaint is granted.

The plaintiff alleges, inter alia, that the defendants committed legal malpractice by failing to file a respondent's brief on his behalf on an appeal to this court from a judgment of divorce in an underlying action entitled Campbell v. Campbell, commenced in the Supreme Court, Dutchess County, under Index No. 000849/98 (see Campbell v. Campbell, 286 A.D.2d 467, 729 N.Y.S.2d 531).

 The appellants made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that the plaintiff would not have been successful on the appeal in the underlying action even if they had performed the tasks enumerated by the plaintiff in his complaint (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Cohen v. Law Offs. of Leonard & Robert Shapiro, 18 A.D.3d 219, 220, 793 N.Y.S.2d 764;   Spano v. Love & Balducci, 221 A.D.2d 992, 635 N.Y.S.2d 569;  Flinn v. Aab, 167 A.D.2d 507, 562 N.Y.S.2d 178).   In opposition to that showing, the plaintiff failed to raise a triable issue of fact.   Accordingly, the Supreme Court should have granted that branch of the appellants' motion which was for summary judgment dismissing the legal malpractice cause of action.

 In addition, the Supreme Court should have granted summary judgment dismissing the plaintiff's remaining causes of action as duplicative of the legal malpractice cause of action (see Town of N. Hempstead v. Winston & Strawn, LLP, 28 A.D.3d 746, 749, 814 N.Y.S.2d 237;  Ferdinand v. Crecca & Blair, 5 A.D.3d 538, 539, 774 N.Y.S.2d 714).