MAR SERVICE CENTER INC v. Donal M. Mahoney, et al., appellants. (2005)

In an action, inter alia, to recover damages for legal malpractice, the defendants Donal M. Mahoney and Brian M. Hussey appeal, as limited by their brief, from stated portions of an order of the Supreme Court, Nassau County (Alpert, J.), entered June 11, 2003, which, among other things, denied that branch of the motion made by them and the defendant Mahoney, Connor & Hussey which was for summary judgment dismissing the cause of action to recover damages for legal malpractice insofar as asserted against them, and the defendant Dennis Connor separately appeals, as limited by his notice of appeal and brief, from stated portions of the same order which, inter alia, denied that branch of his motion which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action to recover damages for legal malpractice insofar as asserted against him.

ORDERED that the order is affirmed insofar as appealed from, with one bill of costs payable by the appellants appearing separately and filing separate briefs.

 To prevail in an action to recover damages for legal malpractice, the plaintiffs must establish that the defendants “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 the plaintiffs, and that, but for the defendant's negligence, the plaintiffs would have been successful in the underlying action” (Laventure v. Galeno, 307 A.D.2d 255, 762 N.Y.S.2d 270).

 With regard to the defendants Donal M. Mahoney and Brian M. Hussey, the Supreme Court properly denied that branch of the motion made by them and the defendant Mahoney, Connor & Hussey which was for summary judgment dismissing the cause of action to recover damages for legal malpractice insofar as asserted against them (see CPLR 3212).   To succeed on a motion for summary judgment, those defendants were required to demonstrate that the plaintiffs were unable to prove at least one of the essential elements of a cause of action to recover damages for legal malpractice (see Allen v. Potruch, 282 A.D.2d 484, 723 N.Y.S.2d 101).   The defendants Donal M. Mahoney and Brian M. Hussey failed to meet their burden.

Additionally, the Supreme Court correctly denied that branch of the motion of the defendant Dennis Connor which was pursuant to CPLR 3211(a)(7) to dismiss the cause of action to recover damages for legal malpractice insofar as asserted against him (see Schneider v. Hand, 296 A.D.2d 454, 744 N.Y.S.2d 899).

The appellants' remaining contentions are without merit.