762 WESTCHESTER AVE REALTY LLC v. MAVRELIS (2018)

DECISION & ORDER

ORDERED that the order is reversed insofar as appealed from, on the law, with costs, and that branch of the plaintiff's motion which was for summary judgment on the issue of liability on the cause of action alleging legal malpractice against the defendant Bill Mavrelis, also known as William N. Mavrelis, is denied.

The plaintiff, a limited liability corporation that owned real property in the Bronx, commenced this action alleging, inter alia, legal malpractice against the defendant Bill Mavrelis, also known as William N. Mavrelis (hereinafter the defendant).  Specifically, the plaintiff alleged that it had retained the defendant to prepare and file an application for a tax abatement on the plaintiff's behalf, that the defendant filed the application late, and that the lateness of the filing was the basis for the denial of the application.  Prior to the completion of discovery, the plaintiff moved, inter alia, for summary judgment on the issue of liability with respect to the cause of action alleging legal malpractice.  In an order dated January 4, 2016, the Supreme Court, among other things, granted that branch of the motion.  The defendant appeals from that portion of the order.

Contrary to the defendant's contention, the plaintiff's motion was not premature (see CPLR 3212[f] ).  However, we disagree with the Supreme Court's determination to grant that branch of the motion which was for summary judgment on the issue of the defendant's liability for malpractice.

In an action alleging legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused plaintiff to sustain actual damages (see Zaidman v. Marcel Weisman, LLC, 106 A.D.3d 813, 814, 965 N.Y.S.2d 160; Erdman v. Dell, 50 A.D.3d 627, 627–628, 854 N.Y.S.2d 755).

Here, the plaintiff failed to establish its prima facie entitlement to judgment as a matter of law on the issue of the defendant's liability, as it failed to present any evidence that its application for the subject tax abatement would have been granted had it been timely filed (see Zaidman v. Marcel Weisman, LLC, 106 A.D.3d at 814, 965 N.Y.S.2d 160; Erdman v. Dell, 50 A.D.3d at 628, 854 N.Y.S.2d 755).  Moreover, the limited, pre-discovery record before us presents unresolved triable issues of fact regarding the cause of the late filing, including the extent, if any, to which such cause is attributable to any act or omission on the part of the defendant.

Accordingly, the Supreme Court should have denied that branch of the plaintiff's motion which was for summary judgment on the issue of the defendant's liability for legal malpractice, regardless of the sufficiency of the defendant's opposing papers (see Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642).

In light of our determination, we need not reach the defendant's remaining contentions.

CHAMBERS, J.P., HINDS–RADIX, LASALLE and IANNACCI, JJ., concur.