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Seidman v. Einig & Bush, LLP

151 A.D.3d 1095 Court N.Y. App. Div. Decision date 2017-06-28 English

Judges Eng, P.J., Leventhal, Austin and Cohen, JJ., concur.

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p. 1095
Sheldon Seidman, Respondent, v Einig & Bush, LLP, et al., Appellants.
[59 NYS3d 44]

In an action to recover damages for legal malpractice, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Kings County (Schmidt, J.), dated March 2, 2015, as denied their motion for summary judgment dismissing the complaint.

Ordered that the order is affirmed insofar as appealed from, with costs.

“In an action to recover damages for legal malpractice, a

p. 1096
plaintiff must demonstrate that the attorney Tailed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438 , 442 [2007], quoting McCoy v Feinman, 99 NY2d 295 , 301 [2002]). “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442 ). “For a defendant in a legal malpractice action to succeed on a motion for summary judgment, evidence must be submitted in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements” (Shopsin v Siben & Siben, 268 AD2d 578 , 578 [2000]; see Eisenberger v Septimus, 44 AD3d 994 [2007]).

Here, the Supreme Court properly denied the defendants’ motion for summary judgment dismissing the complaint (see Rosenstrauss v Jacobs & Jacobs, 56 AD3d 453 , 454 [2008]; Velie v Ellis Law, P.C., 48 AD3d 674 , 675 [2008]; Pedro v Walker, 46 AD3d 789 , 790 [2007]). The defendants failed to make a prima facie showing of their entitlement to judgment as a matter of law since they failed to show that the plaintiff was unable to prove at least one of the essential elements of his legal malpractice cause of action (see Rosenstrauss v Jacobs & Jacobs, 56 AD3d at 454 ; Velie v Ellis Law, P.C., 48 AD3d at 675 ; Pedro v Walker, 46 AD3d at 790 ). Thus, we need not address the sufficiency of the opposing papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 , 853 [1985]).

Eng, P.J., Leventhal, Austin and Cohen, JJ., concur.

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