SILVERMAN v. Rosenberg Law, P.C., et al., respondents.

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Jill H. SILVERMAN, appellant, v. POTRUCH & DAAB, LLC, defendant, Rosenberg Law, P.C., et al., respondents.

No. 2013–04130.

Decided: August 24, 2016

MARK C. DILLON, J.P., CHERYL E. CHAMBERS, SYLVIA O. HINDS–RADIX, and VALERIE BRATHWAITE NELSON, JJ. Michael B. Schulman & Associates, P.C., Melville, NY (Miro Lati of counsel), for appellant. Rosenberg Law, P.C., Garden City, NY (Michelle S. Russo, P.C., Port Washington, NY, of counsel), respondent pro se, and for respondent Bruce S. Rosenberg.

In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Nassau County (Parga, J.), dated February 25, 2013, which granted the motion of the defendants Rosenberg Law, P.C., and Bruce S. Rosenberg for summary judgment dismissing the amended complaint insofar as asserted against them and denied her cross motion for leave to amend the amended complaint.

ORDERED that the order is affirmed, with costs.

The plaintiff commenced this action against, among others, the defendants Rosenberg Law, P.C., and Bruce S. Rosenberg (hereinafter together the Rosenberg defendants), her former attorneys, alleging that they committed legal malpractice in connection with their defense of the plaintiff in an underlying action (see Gamman v. Silverman, 98 A.D.3d 995, 950 N.Y.S.2d 598). The Rosenberg defendants moved for summary judgment dismissing the amended complaint insofar as asserted against them, and the plaintiff cross-moved for leave to amend the amended complaint. The Supreme Court granted the Rosenberg defendants' motion and denied the plaintiff's cross motion.

To recover damages for legal malpractice, a plaintiff must establish that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages (see Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 26 N.Y.3d 40, 50, 19 N.Y.S.3d 488, 41 N.E.3d 353; Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385; McCoy v. Feinman, 99 N.Y.2d 295, 301, 755 N.Y.S.2d 693, 785 N.E.2d 714). “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” (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 Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 26 N.Y.3d at 50, 19 N.Y.S.3d 488, 41 N.E.3d 353; Davis v. Klein, 88 N.Y.2d 1008, 1009–1010, 648 N.Y.S.2d 871, 671 N.E.2d 1268). Thus, in order to prevail on a summary judgment motion, “the defendant in a legal malpractice action must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements” (Alizio v. Feldman, 82 A.D.3d 804, 804, 918 N.Y.S.2d 218; see Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 26 N.Y.3d at 49, 19 N.Y.S.3d 488, 41 N.E.3d 353; Smith v. Kaplan Belsky Ross Bartell, LLP, 126 A.D.3d 877, 878, 6 N.Y.S.3d 100; Affordable Community, Inc. v. Simon, 95 A.D.3d 1047, 1048, 944 N.Y.S.2d 606).

Here, the Rosenberg defendants met their initial burden of demonstrating, prima facie, that the plaintiff cannot establish that but for their conduct, the plaintiff would not have incurred damages in the underlying action. In opposition, the plaintiff failed to raise a triable issue of fact (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572; Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). Accordingly, the Supreme Court properly granted the Rosenberg defendants' motion.

The Supreme Court also providently exercised its discretion in denying the plaintiff's cross motion for leave to amend the amended complaint. Although leave to amend should be freely given in the absence of prejudice or surprise to the opposing party (see CPLR 3025[b] ), the motion should be denied where the proposed amendment is palpably insufficient or patently devoid of merit (see Scofield v. DeGroodt, 54 A.D.3d 1017, 1018, 864 N.Y.S.2d 174; Lucido v. Mancuso, 49 A.D.3d 220, 229, 851 N.Y.S.2d 238). “Whether to grant such leave is within the motion court's discretion, the exercise of which will not be lightly disturbed” (Pergament v. Roach, 41 A.D.3d 569, 572, 838 N.Y.S.2d 591; see Zeleznik v. MSI Constr., Inc., 50 A.D.3d 1024, 1025, 854 N.Y.S.2d 897). Here, the proposed amendments were patently devoid of merit.

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