RICCI v. REDFERN (2005)

In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals, as limited by her brief, from so much of an order of the Supreme Court, Kings County (Ruchelsman, J.), dated October 27, 2003, as granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 Contrary to the determination of the Supreme Court, whether the defendants failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community (see Dimond v. Kazmierczuk, & McGrath, 15 A.D.3d 526, 790 N.Y.S.2d 219), inter alia, in failing to appraise certain marital property in this case, was not decided or necessarily determined in any prior proceeding.   Accordingly, the Supreme Court incorrectly concluded that the plaintiff was collaterally estopped from arguing that the defendants committed legal malpractice (see Weiss v. Manfredi, 83 N.Y.2d 974, 616 N.Y.S.2d 325, 639 N.E.2d 1122;  Katash v. Richard Kranis, P.C., 229 A.D.2d 305, 644 N.Y.S.2d 276).   Nevertheless, the Supreme Court correctly granted the defendants' motion for summary judgment dismissing the complaint.   The defendants made a prima facie showing of entitlement to judgment as a matter of law by demonstrating that they either did not commit legal malpractice or that any alleged malpractice was not a proximate cause of the plaintiff's alleged damages (see Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 508 N.Y.S.2d 923, 501 N.E.2d 572;  Wexler v. Shea & Gould, 211 A.D.2d 450, 621 N.Y.S.2d 858).   With respect to the plaintiff's allegation that the defendants failed to obtain an appraisal of certain marital property, with the result that she received less than her fair share of its value, the defendants demonstrated prima facie that the property was gifted to the parties' son at an agreed-upon value.   Thus, an appraisal was unnecessary.   In opposition, the plaintiff failed to raise a triable issue of fact.

Accordingly, the Supreme Court correctly granted the defendants' motion for summary judgment dismissing the complaint.

The plaintiff's remaining contentions are without merit.