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Supreme Court, Appellate Division, Fourth Department, New York.

George Eagan GINTHER, Plaintiff-Appellant, v. Howard S. ROSENHOCH, Esq. and Jaeckle, Fleischmann & Mugel, LLP, Defendants-Respondents.

Decided: December 31, 2008

PRESENT:  CENTRA, J.P., FAHEY, PERADOTTO, GREEN, AND GORSKI, JJ. George Eagan Ginther, Plaintiff-Appellant Pro Se. Gibson McAskill & Crosby, LLP, Buffalo (Elizabeth M. Bergen of Counsel), for Defendants-Respondents.

 Supreme Court properly granted defendants' motion for summary judgment dismissing the complaint in this legal malpractice action.  “In order to establish their entitlement to judgment as a matter of law, defendants had to present evidence in admissible form establishing that plaintiffs are unable to prove at least one necessary element of a legal malpractice action” (Potter v. Polozie, 303 A.D.2d 943, 943, 757 N.Y.S.2d 418).   One necessary element of such a cause of action is that, “ ‘but for the [defendants'] negligence, the plaintiff[ ] would have been successful in the underlying action’ ” (Oot v. Arno, 275 A.D.2d 1023, 1023, 713 N.Y.S.2d 382).   Here, plaintiff alleges that defendants committed legal malpractice by, among other things, failing to assert a counterclaim in the underlying action, for recovery of premiums paid by plaintiff under a disability insurance policy.   We note, however, that the Second Circuit affirmed the judgment of the District Court in favor of the plaintiff insurer in the underlying action on the sole ground that the claim for benefits made by defendant, the plaintiff herein, was untimely under the policy (Provident Life & Cas. Ins. Co. v. Ginther, 51 Fed.Appx. 72).   Thus, it cannot be said that, but for defendants' negligence, plaintiff would have been successful on a counterclaim for recovery of premiums in the underlying action (see Oot, 275 A.D.2d 1023, 713 N.Y.S.2d 382).

It is hereby ORDERED that the order and judgment so appealed from is unanimously affirmed without costs.


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