Yousian v. Eisenberg, Margolis, Friedman & Moses

34 A.D.3d 228, 822 N.Y.S.2d 710

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 2, 2006
• Status: Published

Opinion

Order, Supreme Court, New York County (Emily Jane Goodman, J.), entered October 6, 2005, which granted defendants’ motion for summary judgment dismissing the complaint alleging legal malpractice, unanimously affirmed, without costs.

The evidence was insufficient to raise a triable issue of fact as to whether, but for the alleged legal malpractice, i.e., causing the underlying action for medical malpractice to be struck from the trial calendar and thereafter failing to restore the action, plaintiffs would have been successful in the underlying action. The affidavit of plaintiffs’ expert was inadequate to support inculpatory inferences that the complained-of surgery was, as plaintiffs contended, unnecessary and negligently performed. Nor was the affidavit sufficient to support an inference that the surgery was the proximate cause of the alleged injuries (see Russo v Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, 301 AD2d 63, 67 [2002]). Concur—Tom, J.E, Mazzarelli, Andrias, Sweeny and Malone, JJ.