LEADBEATER v. PETERS BERGER KOSHEL GOLDBERG (2007)

In an action to recover damages for legal malpractice and breach of contract, the defendants appeal from an order of the Supreme Court, Kings County (Johnson, J.), dated September 9, 2005, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiffs brought this action to recover damages for legal malpractice based on the allegedly negligent representation by the defendants in prosecuting a prior medical malpractice action on their behalf.   The defendants moved for summary judgment dismissing the complaint, arguing that the plaintiffs could not have succeeded in the underlying medical malpractice action.

Through the affidavit of their expert, the defendants made a prima facie showing that they were entitled to judgment as a matter of law (see Dellacona v. Dorf, 5 A.D.3d 625, 774 N.Y.S.2d 776).   In opposition, the plaintiff raised issues of fact as to whether the treating physician and hospital deviated from good and accepted standards of medical practice in failing to diagnose twin gestation and, if so, whether such departure proximately caused the infant plaintiff's cerebral palsy (see Ortaglia v. Scanlon, 35 A.D.3d 421, 825 N.Y.S.2d 256).   The affirmation of the plaintiffs' expert properly connected the factual assertions made therein to the plaintiffs' claim (cf. Mondo v. Ellstein, 302 A.D.2d 437, 754 N.Y.S.2d 579).