ANTONIO v. SAMUELS (1999)

In an action to recover damages for legal malpractice, the plaintiffs appeal from a judgment of the Supreme Court, Suffolk County (Doyle, J.), entered March 18, 1998, which, upon an order of the same court, dated January 16, 1998, granting the respective motions of the defendants for summary judgment dismissing the complaint insofar as asserted against them, dismissed the complaint.

ORDERED that the judgment is affirmed, with one bill of costs to the respondents appearing separately and filing separate briefs.

The defendants made a prima facie showing that the plaintiffs could not establish that but for the negligence of the defendants the plaintiffs would have been successful in a personal injury action they had sought to commence (see, Purificati v. Meyer & Diesenhouse, 243 A.D.2d 697, 665 N.Y.S.2d 308;  see also, Platt v. Portnoy, 220 A.D.2d 652, 632 N.Y.S.2d 659).   In their opposition to the defendants' motions for summary judgment, the plaintiffs failed to rebut the defendants' showing that they did not have a viable personal injury claim (see, e.g., Garvin v. Rosenberg, 204 A.D.2d 388, 614 N.Y.S.2d 190), and failed to establish the contrary by competent proof so as to raise a triable question of fact on this issue (see, CPLR 3212[b] ).  Accordingly, the Supreme Court properly dismissed the complaint as against all of the defendants.

MEMORANDUM BY THE COURT.