OLAIYA v. GOLDEN (2007)

In an action to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Schack, J.), dated July 31, 2006, which granted the defendant's motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint.   To prevail in an action to recover damages for legal malpractice, a plaintiff must establish that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of that duty proximately caused the plaintiff to sustain actual and ascertainable damages (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385;  Avery v. Sirlin, 26 A.D.3d 451, 809 N.Y.S.2d 468;  Natale v. Samel & Assoc., 308 A.D.2d 568, 569, 764 N.Y.S.2d 883).   In order to make a prima facie showing on a motion for summary judgment, the defendant attorney must present admissible evidence that the plaintiff cannot prove at least one of these elements (see Caires v. Siben & Siben, LLP, 2 A.D.3d 383, 384, 767 N.Y.S.2d 785;  Ippolito v. McCormack, Damiani, Lowe & Mellon, 265 A.D.2d 303, 696 N.Y.S.2d 203).   Here, the defendant established his entitlement to judgment as a matter of law with evidence that his conduct was not a proximate cause of the plaintiff's loss of employment with the New York City Department of Juvenile Justice.   In opposition, the plaintiff failed to raise a triable issue of fact.   Accordingly, the Supreme Court properly granted the defendant's motion for summary judgment dismissing the complaint (see CPLR 3212[b] ).