Fasanella v. Levy

27 A.D.3d 616, 810 N.Y.S.2d 675

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: March 21, 2006
• Status: Published

Opinion

In an action to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Queens County (Polizzi, J.), dated February 3, 2004, which granted the motion of the defendants Bruce S. Reznick and Bruce S. Reznick, P.C., and the separate motion of the defendant Joseph A. Levy, for summary judgment dismissing the complaint insofar as asserted against them.

Ordered that the order is affirmed, with costs to the respondents Bruce S. Reznick and Bruce S. Reznick, P.C.

To successfully move for summary judgment dismissing a complaint in an action to recover damages for legal malpractice, a defendant must present evidence in admissible form establishing that the plaintiff is unable to prove at least one essential element (see Pistilli v Gandin, 10 AD3d 353 [2004]; Crawford v McBride, 303 AD2d 442 [2003]). The defendants met their respective burdens of establishing entitlement to judgment as a matter of law by demonstrating that the plaintiff would be unable to prove that, but for any negligence on their part, he would have prevailed in the underlying action to recover damages for personal injuries (see Crawford v McBride, supra). The plaintiff, in opposition, failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the separate motions of the defendants Bruce S. Reznick and Bruce S. Reznick, P.C., and the defendant Joseph A. Levy, for summary judgment dismissing the complaint insofar as asserted against them. Florio, J.P., Santucci, Mastro, Rivera and Covello, JJ., concur.