Rice v. Heilbronner

269 A.D.2d 828, 703 N.Y.S.2d 781, 2000 N.Y. App. Div. LEXIS 1752

Opinion

—Order unanimously affirmed without costs. Memorandum: Plaintiffs commenced this action to recover damages for legal malpractice based upon defendants’ alleged failure to commence a timely action for breach of contract against the Village of Mt. Morris after filing a notice of claim. Supreme Court properly granted defendants’ motion for summary judgment dismissing the claims for all damages except those for fees for legal services. A cause of action for legal malpractice requires proof “that the defendants failed to exercise that degree of care, skill and diligence commonly possessed and exercised by an ordinary member of the legal community, that such negligence was the proximate cause of the actual damages sustained by the plaintiffs, and that but for the defendants’ negligence, the plaintiffs would have been successful in the underlying action” (Logalbo v Plishkin, Rubano & Baum, 163 AD2d 511, 513, lv dismissed 77 NY2d 940; see, Campcore, Inc. v Mathews, 261 AD2d 870, lv denied 93 NY2d 814, rearg denied 94 NY2d 839; Lefkowitz v Lurie, 253 AD2d 855). Defendants met their initial burden by establishing that plaintiffs would not have been successful on their underlying claim against the Village of Mt. Morris, and plaintiffs failed to raise a triable issue of fact (see, Ippolito v McCormack, Damiani, Lowe & Mellon, 265 AD2d 303; Campcore, Inc. v Mathews, supra; Damstetter v Martin [appeal No. 2], 247 AD2d 893, 894). (Appeal from Order of Supreme Court, Wyoming County, Dillon, J. — Summary Judgment.) Present — Green, A. P. J., Hayes, Wisner and Balio, JJ.