ADAMSKI v. LAMA (2008)

Appeal from an order of the Supreme Court (Garry, J.), entered July 5, 2007 in Tompkins County, which, among other things, partially granted defendants' motion for partial summary judgment dismissing the complaint.

Plaintiff has commenced a series of lawsuits against his former employer, nonparty Schuyler Hospital, as well as both his former counsel and counsel for various prior defendants.   In this action, his fifth lawsuit, plaintiff asserts a variety of claims, including legal malpractice and breach of fiduciary duty, against defendants, his counsel in the third and fourth lawsuits, in which he claimed that the various defendants therein had violated the settlement agreement between plaintiff and Schuyler Hospital that resolved plaintiff's first action.¹  Upon this appeal, plaintiff challenges an order of Supreme Court granting defendants' motion for partial summary judgment, dismissing all causes of action except plaintiff's conversion claim and granting defendants' motion to strike plaintiff's demand for punitive damages.

 We affirm.  “ ‘To recover damages for legal malpractice, a plaintiff must demonstrate that the attorney was negligent, that the negligence was a proximate cause of the loss sustained and that plaintiff suffered actual and ascertainable damages' ” (Ehlinger v. Ruberti, Girvin & Ferlazzo, 304 A.D.2d 925, 926, 758 N.Y.S.2d 195 [2003], quoting Busino v. Meachem, 270 A.D.2d 606, 609, 704 N.Y.S.2d 690 [2000] [citations omitted] ). Here, defendants demonstrated prima facie entitlement to summary judgment by submitting proof in admissible form that they exercised adequate care, skill and diligence in discharging their obligations to plaintiff;  that the lack of merit to plaintiff's claims, rather than any alleged negligence of defendants, caused plaintiff's failure to prevail in the third and fourth actions;  and that any damages sustained by plaintiff resulted solely from the settlement agreement signed prior to his representation by defendants.   Inasmuch as plaintiff's submissions in response failed to raise any issues of fact regarding negligence, proximate cause or damages, Supreme Court properly dismissed plaintiff's legal malpractice cause of action (see Guiles v. Simser, 35 A.D.3d 1054, 1055-1056, 826 N.Y.S.2d 484 [2006];  Antokol & Coffin v. Myers, 30 A.D.3d 843, 845-846, 819 N.Y.S.2d 303 [2006];  Lichtenstein v. Barenbaum, 23 A.D.3d 440, 440-441, 803 N.Y.S.2d 916 [2005];  Brodeur v. Hayes, 18 A.D.3d 979, 980-981, 795 N.Y.S.2d 761 [2005], lv. dismissed and denied 5 N.Y.3d 871, 808 N.Y.S.2d 134, 842 N.E.2d 19 [2005] ).   Finally, plaintiff's breach of fiduciary duty claims are, essentially, claims of legal malpractice and, thus, they fail for the reasons detailed above (see Guiles v. Simser, 35 A.D.3d at 1055, 826 N.Y.S.2d 484;   Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 A.D.3d 267, 271-272, 780 N.Y.S.2d 593 [2004] ).

Plaintiff's remaining claims have been considered and found to be lacking in merit.

ORDERED that the order is affirmed, without costs.

FOOTNOTES

1.   This Court previously affirmed an order striking the complaint in plaintiff's second lawsuit, a slip and fall action against Schuyler Hospital, due to plaintiff's noncompliance with discovery orders (Adamski v. Schuyler Hosp. Inc., 36 A.D.3d 1198, 829 N.Y.S.2d 718 [2007] ).   Currently pending before us is plaintiff's appeal from the dismissal of his complaint in his sixth action, in which he asserts, among other things, a libel claim against trial counsel for the defendants in this action (Adamski v. Romano-Schulman, 56 A.D.3d 1078, 867 N.Y.S.2d 356 [2008] [decided herewith] ).

MERCURE, J.P.

SPAIN, ROSE, KANE and STEIN, JJ., concur.