McClellan v. Jacoby & Meyers, L.L.P.

Order, Supreme Court, Bronx County (Betty Owen Stinson, J.), entered June 6, 2005, which granted defendant’s motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.

Plaintiff failed to demonstrate, in this legal malpractice action, that he would have been successful in the underlying negligence action but for the alleged negligence of his attorney (Davis v Klein, 88 NY2d 1008 [1996]). In particular, he failed to raise a question of fact as to whether his injury was due to a defective condition, and whether the defendant in the underlying action had actual or constructive notice of such condition. Concur—Mazzarelli, J.P, Andrias, Nardelli, Gonzalez and Malone, JJ.