Barilla v. Olinsky

255 A.D.2d 944, 680 N.Y.S.2d 884, 1998 N.Y. App. Div. LEXIS 12187

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 13, 1998
• Status: Published

Opinion

—Order unanimously reversed on the law without costs, motion denied, cross motion granted and complaint dismissed. Memorandum: Supreme Court erred in granting plaintiffs motion for summary judgment on the issue of liability in this legal malpractice action and in denying defendant’s cross motion for summary judgment dismissing the complaint. With respect to plaintiff’s motion, plaintiff failed to meet his initial burden of establishing, inter alia, that he would have prevailed in the underlying defamation action if not for the alleged legal malpractice (see, Kaufman & Kaufman v Hoff, 213 AD2d 197, 198). Because plaintiff is a public figure and the alleged defamatory statement concerns acts or conduct relevant to his fitness for office, plaintiff was required to show that the alleged defamatory statement in the television newscast was made with actual malice (see generally, New York Times Co. v Sullivan, 376 US 254, 279-280; Sweeney v Prisoners’ Legal Servs., 84 NY2d 786, 792). Plaintiff failed to make that showing.

With respect to defendant’s cross motion, defendant met his initial burden of establishing that there is no evidence of actual malice, and plaintiff failed to raise an issue of fact with respect to actual malice (see generally, Freeman v Johnston, 84 NY2d , cert denied 513 US 1016). Thus, because defendant established as a matter of law that plaintiff could not have prevailed in the underlying action, plaintiff may not prevail in this legal malpractice action (see, Kaufman & Kaufman v Hoff, supra, at 198; Fidler v Sullivan, 93 AD2d 964). (Appeal from Order of Supreme Court, Oswego County, Nicholson, J. — Summary Judgment.) Present — Denman, P. J., Green, Pine, Hayes and Boehm, JJ.