Ginther v. Heim

Appellate Division of the Supreme Court of New York

Ginther v. Heim

55 A.D.3d 1377, 864 N.Y.S.2d 370

CourtAppellate Division of the Supreme Court of the State of New York

DecidedOctober 3, 2008

DocketAppeal No. 1

StatusPublished

Cited by1 cases

This text of 55 A.D.3d 1377 (Ginther v. Heim) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Ginther v. Heim, 55 A.D.3d 1377, 864 N.Y.S.2d 370 (N.Y. Ct. App. 2008).

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Opinion

Appeal from an order of the Supreme Court, Erie County (Donna M. Siwek, J.), entered April 19, 2007 in a legal malpractice action. The order granted the motion of defendants for summary judgment and dismissed the complaint.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: We conclude with respect to the order in appeal No. 1 that Supreme Court properly granted defendants’ “renewed summary judgment motion” and dismissed the complaint. Defendants met their burden of establishing their entitlement to judgment as a matter of law by establishing that plaintiff is unable to prove causation or actual damages, both of which are essential elements of this legal malpractice action, and plaintiff failed to raise a triable issue of fact (see Oot v Arno, 275 AD2d 1023, 1024 [2000]; see also Giambrone v Bank of N.Y., 253 AD2d 786, 787 [1998]).

[1378]*1378With respect to the order in appeal No. 2, plaintiff, as limited by his brief, contends only that the court erred in denying that part of his motion seeking leave to reargue his opposition to defendants’ motion in appeal No. 1. It is well settled, however, that no appeal lies from an order denying a motion for leave to reargue (see Empire Ins. Co. v Food City, 167 AD2d 983, 984 [1990]). Present—Hurlbutt, J.P., Smith, Centra, Green and Pine, JJ.

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Appeal from an order of the Supreme Court, Erie County (Donna M. Siwek, J.), entered April 19, 2007 in a legal malpractice action. The order granted the motion of defendants for summary judgment and dismissed the complaint.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: We conclude with respect to the order in appeal No. 1 that Supreme Court properly granted defendants’ “renewed summary judgment motion” and dismissed the complaint. Defendants met their burden of establishing their entitlement to judgment as a matter of law by establishing that plaintiff is unable to prove causation or actual damages, both of which are essential elements of this legal malpractice action, and plaintiff failed to raise a triable issue of fact (see Oot v Arno, 275 AD2d 1023, 1024 [2000]; see also Giambrone v Bank of N.Y., 253 AD2d 786, 787 [1998]).

[1378]*1378With respect to the order in appeal No. 2, plaintiff, as limited by his brief, contends only that the court erred in denying that part of his motion seeking leave to reargue his opposition to defendants’ motion in appeal No. 1. It is well settled, however, that no appeal lies from an order denying a motion for leave to reargue (see Empire Ins. Co. v Food City, 167 AD2d 983, 984 [1990]). Present—Hurlbutt, J.P., Smith, Centra, Green and Pine, JJ.

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55 A.D.3d 1377, 864 N.Y.S.2d 370, Counsel Stack Legal Research, https://law.counselstack.com/opinion/ginther-v-heim-nyappdiv-2008.

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