ASHER v. SHLIMBAUM

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

Daniel W. ASHER, appellant, v. Lark J. SHLIMBAUM, et al., respondents.

Decided: November 27, 2007

ROBERT W. SCHMIDT, J.P., REINALDO E. RIVERA, GABRIEL M. KRAUSMAN, and ANITA R. FLORIO, JJ. Greshin, Ziegler & Amicizia, LLP, Smithtown, N.Y. (Matthew H. Bligh of counsel), for appellant. Babchik & Young, LLP, White Plains, N.Y. (Jack Babchik, Matthew J. Rosen, and Jordan Sklar of counsel), for respondents.

In an action to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Suffolk County (Weber, J.), dated May 3, 2006, which granted the defendants' motion to dismiss the complaint pursuant to CPLR 3211.

ORDERED that the order is affirmed, with costs.

The Supreme Court properly granted the defendants' motion to dismiss the complaint alleging legal malpractice.   The plaintiff's underlying action was commenced to enforce an alleged oral contract between himself and his sister and brother-in-law to convey certain real property from them to him.   By order dated September 30, 2004, the Supreme Court found that the plaintiff's actions in connection with the acquisition and maintenance of the property were not unequivocally referable to the alleged contract (see General Obligations Law § 5-703[4] ), and therefore the alleged contract was barred by the statute of frauds and was unenforceable (see General Obligations Law § 5-703[3] ).   This was sufficient to show that the plaintiff could not establish that he would have succeeded in the underlying action but for the defendants' failure to plead other legal theories in connection with the underlying action (see Leder v. Spiegel, 9 N.Y.3d 836, 840 N.Y.S.2d 888, 872 N.E.2d 1194).   Accordingly, the Supreme Court properly granted the defendants' motion to dismiss the complaint (see L & S Motors, Inc., d/b/a Huntington Honda v. Broadview Networks, Inc., 25 A.D.3d 767, 808 N.Y.S.2d 777;  Dann v. King Assoc., LLC, 303 A.D.2d 539, 756 N.Y.S.2d 478;  Roth v. Goldman, 254 A.D.2d 405, 679 N.Y.S.2d 92).

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