HAMOUDEH v. MANDEL

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

Ghazi HAMOUDEH, respondent, v. Gary J. MANDEL, et al., appellants.

Decided: May 26, 2009

WILLIAM F. MASTRO, J.P., HOWARD MILLER, CHERYL E. CHAMBERS, and LEONARD B. AUSTIN, JJ. Furman Kornfeld & Brennan, LLP, New York, N.Y. (A. Michael Furman of counsel), for appellants. Glinkenhouse, Floumanhaft & Queen, Cedarhurst, N.Y. (Alan Queen of counsel), for respondent.

In an action to recover damages for legal malpractice, the defendants appeal from an order of the Supreme Court, Queens County (Lane, J.), dated July 28, 2008, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is reversed, on the law, with costs, and the defendants' motion for summary judgment dismissing the complaint is granted.

The plaintiff allegedly slipped and fell while descending an exterior staircase of a private residence.   The plaintiff retained the defendants to commence an action to recover damages for his personal injuries.   Subsequently, the plaintiff commenced this action against the defendants, alleging that they had failed to timely commence such an action.   During a deposition, the plaintiff stated that he did not know what had caused him to fall.   The defendants moved for summary judgment, contending that the plaintiff would not have prevailed in the underlying action even if they had timely commenced an action.   The Supreme Court denied the motion.   We reverse.

 To establish a cause of action to recover damages for legal malpractice, a plaintiff must prove that the attorney “failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty proximately caused the plaintiff actual and ascertainable damages” (Maiolini v. McAdams & Fallon, P.C., 61 A.D.3d 644, 645, 877 N.Y.S.2d 368 [citations omitted] ).  “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer's negligence” (id. [citations omitted];  see also Pedro v. Walker, 46 A.D.3d 789, 847 N.Y.S.2d 666;  Lichtenstein v. Barenbaum, 23 A.D.3d 440, 803 N.Y.S.2d 916;  Porello v. Longworth, 21 A.D.3d 541, 799 N.Y.S.2d 918;  Dimond v. Kazmierczuk & McGrath, 15 A.D.3d 526, 790 N.Y.S.2d 219;  Iannarone v. Gramer, 256 A.D.2d 443, 444, 682 N.Y.S.2d 84).

 Here, the defendants established, prima facie, that even if they had commenced a timely action, the plaintiff would not have been successful on the merits, since he could not identify what had caused him to fall (see Costantino v. Webel, 57 A.D.3d 472, 869 N.Y.S.2d 179;  Karwowski v. New York City Tr. Auth., 44 A.D.3d 826, 844 N.Y.S.2d 96;  Manning v. 6638 18th Ave. Realty Corp., 28 A.D.3d 434, 814 N.Y.S.2d 178;  Golba v. City of New York, 27 A.D.3d 524, 813 N.Y.S.2d 125;  Tejada v. Jonas, 17 A.D.3d 448, 792 N.Y.S.2d 605).   In opposition, the plaintiff failed to raise a triable issue of fact (see Denicola v. Costello, 44 A.D.3d 990, 844 N.Y.S.2d 438;  Tejada v. Jonas, 17 A.D.3d 448, 792 N.Y.S.2d 605;  Sanchez v. City of New York, 305 A.D.2d 487, 758 N.Y.S.2d 824).

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