SANTOSTEFANO v. ZABELL (2026)

DECISION & ORDER

In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Vincent J. Martorana, J.), dated April 27, 2022.  The order granted the defendants' motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

In April 2018, the plaintiff commenced this action against the defendants, Zabell & Associates, P.C., and Saul Zabell, a partner at the firm (hereinafter together the defendants), inter alia, to recover damages for legal malpractice arising out of the defendants' representation of him at a hearing on charges brought against him by his employer, The Middle Country Central School District (hereinafter the underlying proceeding).  The plaintiff alleged, among other things, that the defendants negligently advised the plaintiff to settle the underlying proceeding.  The defendants moved for summary judgment dismissing the complaint.  The plaintiff opposed.  In an order dated April 27, 2022, the Supreme Court granted the defendants' motion.  The plaintiff appeals.

A plaintiff in an action alleging legal malpractice must prove that the defendant attorney's failure to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession proximately caused the plaintiff to suffer damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442;  Sang Seok Na v Schietroma, 163 AD3d 597, 598).  “A defendant seeking summary judgment dismissing a legal malpractice cause of action has the burden of establishing prima facie that he or she did not fail to exercise such skill and knowledge, or that the claimed departure did not proximately cause the plaintiff to sustain damages” (Provenzano v Cellino & Barnes, P.C., 207 AD3d 763, 764 [internal quotation marks omitted];  see Bakcheva v Law Offs. of Stein & Assoc., 169 AD3d 624, 625).  If the defendant meets that burden, the burden shifts to the plaintiff to raise a triable issue of fact.  To establish proximate causation, the plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the defendant attorney's negligence (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442;  Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 757).  “ ‘Mere speculation about a loss resulting from an attorney's alleged omission is insufficient to sustain a prima facie case of legal malpractice’ ” (Alaimo v Mongelli, 93 AD3d 742, 743, quoting Humbert v Allen, 89 AD3d 804, 806).

Here, the defendants established, prima facie, that the plaintiff did not sustain any actual and ascertainable damages (see Richmond Holdings, LLC v. David S. Frankel, P.C., 150 AD3d 1168, 1168).  In opposition, the plaintiff failed to raise a triable issue of fact.  The plaintiff's claims that he could have obtained a more favorable outcome at a hearing had he declined to enter into the settlement are conclusory and speculative (see Casey v. Exum, 219 AD3d 456, 457;  Katsoris v. Bodnar & Milone, LLP, 186 AD3d 1504, 1506).

In addition, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the cause of action alleging violation of Judiciary Law § 487.  Judiciary Law § 487 imposes civil liability on any attorney who “[i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive ․ any party.”  Here, the defendants established, prima facie, that they did not engage in any deceit or collusion with the intent to deceive the plaintiff (see Bill Birds, Inc. v. Stein Law Firm, P.C., 35 NY3d 173, 179;  Garanin v. Hiatt, 239 AD3d 710, 711–712).  In opposition, the plaintiff failed to raise a triable issue of fact.

The plaintiff's remaining contentions are without merit.

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

DUFFY, J.P., WOOTEN, LOVE and QUIRK, JJ., concur.