ALAIMO v. MONGELLI

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

Richard J. ALAIMO, et al., appellants, v. Michael F. MONGELLI, et al., respondents, et al., defendants.

Decided: March 20, 2012

RUTH C. BALKIN, J.P., RANDALL T. ENG, L. PRISCILLA HALL, and SHERI S. ROMAN, JJ. James A. Prestiano, P.C., Commack, N.Y., for appellants. Milber Makris Plousadis & Seiden, LLP, Woodbury, N.Y. (Lorin A. Donnelly of counsel), for respondents.

In an action to recover damages for legal malpractice, the plaintiffs appeal from stated portions of an order of the Supreme Court, Nassau County (Parga, J.), entered December 3, 2010, which, inter alia, granted that branch of the motion of the defendants Michael F. Mongelli and Michael F. Mongelli, P.C., which was for summary judgment dismissing the amended complaint insofar as asserted against them, and denied that branch of their cross motion which was for leave to further amend the amended complaint and to conform the pleadings to the proof.

ORDERED that the order is affirmed insofar as appealed from, with costs.

 Contrary to the plaintiffs' contention, that branch of the motion of the defendants Michael F. Mongelli and Michael F. Mongelli, P.C. (hereinafter together the Mongelli defendants) which was for summary judgment dismissing the first cause of action in the amended complaint insofar as asserted against them “did not violate the general proscription against successive summary judgment motions because it was based on deposition testimony which was not elicited until after the date of the prior order denying the earlier motion for summary judgment” (Auffermann v. Distl, 56 A.D.3d 502, 502, 867 N.Y.S.2d 527;  see Staib v. City of New York, 289 A.D.2d 560, 735 N.Y.S.2d 799).

 “To state a cause of action to recover damages for legal malpractice, a plaintiff must allege:  (1) that the attorney ‘failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession;’ and (2) that the attorney's breach of the duty proximately caused the plaintiff actual and ascertainable damages” (Dempster v. Liotti, 86 A.D.3d 169, 176, 924 N.Y.S.2d 484, quoting Leder v. Spiegel, 9 N.Y.3d 836, 837, 840 N.Y.S.2d 888, 872 N.E.2d 1194, cert. denied sub nom. Spiegel v. Rowland, 552 U.S. 1257, 128 S.Ct. 1696, 170 L.Ed.2d 354;  see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385).

 “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’ ” (Kennedy v. H. Bruce Fischer, Esq., P.C., 78 A.D.3d 1016, 1018, 912 N.Y.S.2d 590, quoting Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d at 442, 835 N.Y.S.2d 534, 867 N.E.2d 385;  see Kuzmin v. Nevsky, 74 A.D.3d 896, 898, 903 N.Y.S.2d 96;  see also Carrasco v. Pena & Kahn, 48 A.D.3d 395, 853 N.Y.S.2d 84).  “Mere speculation about a loss resulting from an attorney's alleged omission is insufficient to sustain a prima facie case of legal malpractice” (Humbert v. Allen, 89 A.D.3d 804, 932 N.Y.S.2d 155 [internal quotation marks omitted] ).

 “On a motion for summary judgment in the legal malpractice context, the defendant must ‘demonstrate that the plaintiff is unable to prove at least one of the essential elements of a legal malpractice cause of action’ (Greene v. Sager, 78 A.D.3d 777, 779, 910 N.Y.S.2d 546;  see Eisenberger v. Septimus, 44 A.D.3d 994, 845 N.Y.S.2d 102;  Kotzian v. McCarthy, 36 A.D.3d 863, 827 N.Y.S.2d 875).   Once a defendant makes this prima facie showing, the burden shifts to the plaintiff to raise an issue of fact requiring a trial (see Siciliano v. Forchelli & Forchelli, 17 A.D.3d at 345, 793 N.Y.S.2d 102;   Schadoff v. Russ, 278 A.D.2d 222, 717 N.Y.S.2d 284)” (Dempster v. Liotti, 86 A.D.3d at 180–181, 924 N.Y.S.2d 484).

 Here, the Mongelli defendants established their prima facie entitlement to judgment as a matter of law dismissing the amended complaint alleging legal malpractice insofar as asserted against them by demonstrating that the plaintiffs would be unable to prove, inter alia, the element of causation (see Humbert v. Allen, 89 A.D.3d at 806–807, 932 N.Y.S.2d 155;  Marino v. Lipsitz, Green, Fahringer, Roll, Salibury & Cambria, LLP, 87 A.D.3d 566, 928 N.Y.S.2d 462;  Pistilli Constr. & Dev. Corp. v. Epstein, Rayhill & Frankini, 84 A.D.3d 913, 921 N.Y.S.2d 887;  Markowitz v. Kurzman Eisenberg Corbin Lever & Goodman, LLP, 82 A.D.3d 719, 917 N.Y.S.2d 683).   In opposition, the plaintiffs failed to raise a triable issue of fact (see generally Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718).

The plaintiffs' remaining contentions are without merit.

Thus, the Supreme Court correctly awarded the Mongelli defendants summary judgment dismissing the amended complaint insofar as asserted against them.

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