Zbryski v. Kahn

276 A.D.2d 255, 713 N.Y.S.2d 730, 2000 N.Y. App. Div. LEXIS 9867

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 3, 2000
• Status: Published

Opinion

Order, Supreme Court, New York County (Paula Omansky, J.), entered on or about September 15, 1998, which, inter alia, granted defendants’ motions for summary judgment dismissing the complaint for legal malpractice, unanimously affirmed, without costs.

The complaint for legal malpractice was properly dismissed in light of the absence of any factual issue as to whether, but for the alleged malpractice, plaintiff would have prevailed in the underlying proceeding brought pursuant to CPLR article 78 (see, Kerson Co. v Shayne, Dachs, Weiss, Kolbrenner, Levy & Levine, 45 NY2d 730). The outcome of plaintiffs CPLR article 78 proceeding would have been the same even if defendants had not failed to perfect plaintiffs appeal from the dismissal of his petition challenging the denial of his application for accidental disability retirement benefits. There was no basis in the record mandating the conclusion that plaintiffs disability had been caused by a service-related injury. Accordingly, no ground appeared upon which the denial of accidental disability benefits, resulting from a tie vote of the Board of Trustees of the New York City Fire Department, might have been disturbed (see, Matter of Meyer v Board of Trustees of N. Y. City Fire Dept., 90 NY2d 139, 144-145). Concur — Sullivan, P. J., Rosenberger, Lerner, Andrias and Friedman, JJ.