Rosenthal v. Liberty Mut. Ins. Co.

Opinion

Rosenthal v Liberty Mut. Ins. Co.

2026 NY Slip Op 05043

August 19, 2026

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This decision is uncorrected and subject to revision before publication in the Official Reports.

Jill Rosenthal, appellant,

v

Liberty Mutual Insurance Company, defendant, The Law Office of James A. McGlynn, LLC, et al., respondents.

Supreme Court of the State of New York, Appellate Division, Second Judicial Department

Decided on August 19, 2026

2024-04574, (Index No. 614997/19)

Angela G. Iannacci, J.P.

Valerie Brathwaite Nelson

Paul Wooten

Janice A. Taylor, JJ.

The Law Office of Jason Tenenbaum, P.C., Melville, NY, for appellant.

Lewis Brisbois Bisgaard & Smith LLP, New York, NY (Kevin D. Torge and Jamie R. Wozman of counsel), for respondents.

[*1]

DECISION & ORDER

In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Catherine Rizzo, J.), entered March 13, 2024. The judgment, upon an order of the same court entered February 15, 2024, inter alia, granting the motion of the defendants The Law Office of James A. McGlynn, LLC, and James A. McGlynn for summary judgment dismissing the amended complaint insofar as asserted against them and on their counterclaim to recover damages for breach of contract and denying those branches of the plaintiff's cross-motion which were for summary judgment on the issue of liability on the legal malpractice cause of action and dismissing those defendants' counterclaim to recover damages for breach of contract, is in favor of those defendants and against the plaintiff dismissing the amended complaint insofar as asserted against those defendants and in the principal sum of $7,740 on those defendants' counterclaim to recover damages for breach of contract.

ORDERED that the judgment is affirmed, with costs.

In October 2019, the plaintiff commenced this action against the defendants James A. McGlynn and The Law Office of James A. McGlynn, LLC (hereinafter together the defendants), among others, inter alia, to recover damages for legal malpractice the defendants allegedly committed in their representation of the plaintiff in connection with her dispute with the defendant Liberty Mutual Insurance Company (hereinafter Liberty), the holder of her homeowners' insurance policy (hereinafter the policy). The plaintiff alleged that the defendants failed to commence an action against Liberty within two years of the date of loss, as required by the policy. The defendants asserted a counterclaim to recover damages for breach of contract, alleging unpaid legal fees, and moved for summary judgment dismissing the amended complaint insofar as asserted against them and on their counterclaim. The plaintiff cross-moved, among other things, for summary judgment on the issue of liability on the legal malpractice cause of action and dismissing the defendants' counterclaim. In an order entered February 15, 2024, the Supreme Court, inter alia, granted the defendants' motion and denied those branches of the plaintiff's cross-motion. On March 13, 2024, the court entered a judgment in favor of the defendants and against the plaintiff dismissing the amended complaint insofar as asserted against the defendants and in the principal sum of $7,740 on the defendants' counterclaim. The plaintiff appeals.

"To succeed on a motion for summary judgment dismissing a legal malpractice action, a defendant must present evidence in admissible form establishing that at least one of the essential elements of legal malpractice cannot be satisfied" (Aqua-Trol Corp. v Wilentz, Goldman & Spitzer, P.A., 197 AD3d 544, 545; see Buczek v Dell & Little, LLP, 127 AD3d 1121, 1123; Valley Ventures, LLC v Joseph J. Haspel, PLLC, 102 AD3d 955, 956). "Those elements require a showing that (1) the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and (2) the attorney's breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages" (Aqua-Trol Corp. v Wilentz, Goldman & Spitzer, P.A., 197 AD3d at 545; see Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 845; Bells v Foster, 83 AD3d 876, 877). "The causation element requires a showing that the injured party 'would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer's negligence'" (Aqua-Trol Corp. v Wilentz, Goldman & Spitzer, P.A., 197 AD3d at 545 [internal quotation marks omitted], quoting Bells v Foster, 83 AD3d at 877). "The defendant must affirmatively demonstrate the absence of one of the elements of legal malpractice, rather than merely pointing out gaps in the plaintiff's proof" (id.; see Quantum Corporate Funding, Ltd. v Ellis, 126 AD3d 866, 871).

Here, the defendants established, prima facie, that they did not fail to exercise the skill and knowledge commonly possessed by a member of the legal profession and that it was the plaintiff's own inaction and failure to communicate with the defendants that prevented the filing of a timely lawsuit against Liberty (see Feldman v Finkelstein & Partners, LLP, 131 AD3d 505, 506; Pedote v Kelly, 124 AD3d 855, 856). The defendants further established, prima facie, that any alleged malpractice on their part did not proximately cause the plaintiff's damages, as she failed to comply with the conditions set forth in the policy and would not have prevailed in her action against Liberty even if timely commenced (see Dodenc v Dell & Dean, PLLC, 235 AD3d 623, 624; Buczek v Dell & Little, LLP, 127 AD3d at 1123; Valley Ventures, LLC v Joseph J. Haspel, PLLC, 102 AD3d at 956). In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted that branch of the defendants' motion which was for summary judgment dismissing the amended complaint insofar as asserted against them.

The Supreme Court also properly granted that branch of the defendants' motion which was for summary judgment on their breach of contract counterclaim. "To recover damages for breach of contract, a plaintiff must demonstrate the existence of a contract, the plaintiff's performance pursuant to the contract, the defendant's breach of its contractual obligations, and damages resulting from the breach" (Ben Ciccone, Inc. v Naber Elec. Corp., 214 AD3d 936, 937-938 [internal quotation marks omitted]; see Dean Bldrs. Group, P.C. v M.B. Din Constr., Inc., 186 AD3d 1612, 1614). Here, the defendants submitted, inter alia, the retainer agreement between the plaintiff and the defendants, invoices from the defendants to the plaintiff for legal services rendered, and a transcript of the plaintiff's deposition testimony, in which she testified that she failed to pay the outstanding invoices. The defendants also submitted evidence establishing that they performed under the retainer agreement by, among other things, representing the plaintiff at her examination under oath and communicating with Liberty regarding the plaintiff's insurance claim. These submissions were sufficient to demonstrate the defendants' prima facie entitlement to judgment as a matter of law on their breach of contract counterclaim (see McAllister v Wayside Out-Reach Dev., Inc., 241 AD3d 539, 540; O'Keefe v Barra, 215 AD3d 1039, 1041; Finger & Finger, A Professional Corp. v Buckingham Owners, Inc., 165 AD3d 887, 888). In opposition, the plaintiff failed to raise a triable issue of fact.

In light of the foregoing, the parties' remaining contentions either are without merit or need not be reached.

IANNACCI, J.P., BRATHWAITE NELSON, WOOTEN and TAYLOR, JJ., concur.

ENTER:

Darrell M. Joseph

Clerk of the Court