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MANNA FUEL OIL CORP., appellant, v. Paul R. ADES, respondent.
In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Emerson, J.), dated May 7, 2003, which granted the defendant's motion, inter alia, for summary judgment dismissing the complaint and denied its cross motion for summary judgment on the issue of liability and to impose a sanction.
ORDERED that the order is affirmed, with costs.
A plaintiff claiming legal malpractice must demonstrate proof of negligence, that the negligence was the proximate cause of the harm suffered by the plaintiff, and actual damages (see Allen v. Potruch, 282 A.D.2d 484, 723 N.Y.S.2d 101; Mills Real Estate Holding Corp. v. Birbrower, Montalbano, Condon & Frank, 274 A.D.2d 505, 712 N.Y.S.2d 381; Rau v. Borenkoff, 262 A.D.2d 388, 691 N.Y.S.2d 140; Lauer v. Rapp, 190 A.D.2d 778, 593 N.Y.S.2d 843; Murphy v. Stein, 156 A.D.2d 546, 549 N.Y.S.2d 53). Here, after the defendant made out a prima facie case for summary judgment, the plaintiff failed to demonstrate the existence of a triable issue of fact that the defendant breached a duty to it, and that even if there was such a breach, that it was the proximate cause of damages incurred by the plaintiff. Consequently, the Supreme Court properly granted that branch of the defendant's motion which was for summary judgment dismissing the cause of action to recover damages for legal malpractice (see Mills Real Estate & Holding Corp. v. Birbrower, Montalbano, Condon & Frank, supra ).
The Supreme Court also properly granted that branch of the defendant's motion which was for summary judgment dismissing the cause of action alleging a violation of Judiciary Law § 487. In opposition to the defendant's prima facie showing of entitlement to summary judgment, the plaintiff failed to raise a triable issue of fact as to the elements of fraud as a predicate to its claim of a violation of that section, nor did the alleged wrongdoing take place in the context of a legal proceeding (see Beshara v. Little, 215 A.D.2d 823, 626 N.Y.S.2d 310; Michalic v. Klat, 128 A.D.2d 505, 512 N.Y.S.2d 436; Di Prima v. Di Prima, 111 A.D.2d 901, 490 N.Y.S.2d 607).
The plaintiff's remaining contentions are without merit.
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Decided: January 31, 2005
Court: Supreme Court, Appellate Division, Second Department, New York.
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