RRI/SYN Tech XLVII v. Summit, Rovins & Feldesman

210 A.D.2d 173, 620 N.Y.S.2d 959

Opinion

—Order, Supreme Court, New York County (Charles Ramos, J., upon decision of Seymour Schwartz, J.), entered March 24, 1994, which granted a motion by the third-party defendants for summary judgment dismissing the third-party complaint and denied plaintiff’s cross-motion for summary judgment, unanimously affirmed, without costs.

Plaintiff’s cross-motion for summary judgment in this action for legal malpractice was properly denied since plaintiff failed to demonstrate that it would have prevailed in the underlying action but for defendants’ failure to act properly in seeking to restore that action to the calendar (see, Murphy v Stein, 156 AD2d 546, appeal dismissed 75 NY2d 946). The third-party action for indemnification was properly dismissed because the efforts of third-party defendants to restore the case to the calendar could not have prevailed where the case had been marked off the calendar for over two years when the third-party plaintiffs were discharged as counsel. Concur—Murphy, P. J., Rosenberger, Rubin and Nardelli, JJ.