CIC International, Ltd. v. Drinker, Biddle & Reath

169 A.D.2d 452, 564 N.Y.S.2d 156, 1991 N.Y. App. Div. LEXIS 125

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 10, 1991
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Beverly Cohen, J.), entered October 2, 1989, which, inter alia, upon reargument adhered to its original determination, dated May 15, 1989, granting summary judgment to defendant, unanimously affirmed, with costs.

In this action for legal malpractice, plaintiff argues on appeal that the court treated the motion to dismiss as one for summary judgment without notice to plaintiff. The fact that plaintiff’s own reply to a supplementary affidavit requested that the motion be treated as a motion for summary judgment on the issue of liability indicates that the court did not err procedurally (Wein v City of New York, 36 NY2d 610). With respect to the merits of plaintiff’s opposition to the motion for summary judgment, plaintiff failed to demonstrate that there were any issues of fact as to whether defendant was negligent, and whether, but for the negligence, plaintiff would have been successful in the prior action (see, Pacesetter Communications Corp. v Solin & Breindel, 150 AD2d 232, lv dismissed 74 NY2d 892). Concur—Sullivan, J. P., Milonas, Rosenberger, Wallach and Smith, JJ.