Appellate Division of the Supreme Court of New York, 2011

Alizio v. Feldman

Appellate Division of the Supreme Court of New York · Decided March 8, 2011

82 A.D.3d 804; 918 N.Y.2d 218

Cases that cite this one

37 later published cases cite this decision. The 25 that cite it most often are listed here.

Kempf v. Magida (Appellate Division of the Supreme Court of New York 2014)
Kempf v. Magida (Appellate Division of the Supreme Court of New York 2014)
Quantum Corporate Funding, Ltd. v. Ellis (Appellate Division of the Supreme Court of New York 2015)
Antonelli v. Guastamacchia (Appellate Division of the Supreme Court of New York 2015)
Verdi v. Jacoby & Meyers, LLP (Appellate Division of the Supreme Court of New York 2012)
JMF Consulting Group II, Inc. v. Beverage Marketing USA, Inc. (Appellate Division of the Supreme Court of New York 2012)
JMF Consulting Group II, Inc. v. Beverage Marketing USA, Inc. (Appellate Division of the Supreme Court of New York 2012)
Ofman v. Katz (Appellate Division of the Supreme Court of New York 2011)
Klein v. State Farm Ins. Co. (Appellate Division of the Supreme Court of New York 2021)
Attallah v. Milbank, Tweed, Hadley & McCloy, LLP (Appellate Division of the Supreme Court of New York 2019)
Tiffany Tower Condominium, LLC v. Insurance Co. of the Greater N.Y. (Appellate Division of the Supreme Court of New York 2018)
Abruscato v. Allstate Prop. (Appellate Division of the Supreme Court of New York 2018)
Burbige v. Siben & Ferber (Appellate Division of the Supreme Court of New York 2017)
Soni v. Pryor (Appellate Division of the Supreme Court of New York 2016)
Stuckey v. Lutheran Care Foundation Network, Inc. (Appellate Division of the Supreme Court of New York 2016)
Silverman v. Potruch & Daab, LLC (Appellate Division of the Supreme Court of New York 2016)
Village of Kiryas Joel v. County of Orange (Appellate Division of the Supreme Court of New York 2016)
Ranno v. Cantor (Appellate Division of the Supreme Court of New York 2015)
Waterways at Bay Pointe Homeowners Ass'n v. Waterways Development Corp. (Appellate Division of the Supreme Court of New York 2015)
Ginsburg Development Companies, LLC v. Carbone (Appellate Division of the Supreme Court of New York 2015)
Guerrera v. Zysk (Appellate Division of the Supreme Court of New York 2014)
Bivona v. Danna & Associates, P.C. (Appellate Division of the Supreme Court of New York 2014)
Rehberger v. Garguilo & Orzechowski, LLP (Appellate Division of the Supreme Court of New York 2014)
Rehberger v. Garguilo & Orzechowski, LLP (Appellate Division of the Supreme Court of New York 2014)
Parklex Associates v. Flemming Zulack Williamson Zauderer, LLP (Appellate Division of the Supreme Court of New York 2014)

This list shows which later cases cite this one. It does not say how they treated it, and no review of that has been done. Not a substitute for Shepard’s or KeyCite — verify before relying.

Opinion of the Court

In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed 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 the plaintiff to sustain actual and ascertainable damages (see Rudolf v Shayne, Lacks, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]). “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” (id.). To succeed on a motion for summary judgment, the defendant in a legal malpractice action must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements (see Lichtenstein v Barenbaum, 23 AD3d 440, 440 [2005]). Here, the defendants failed to make a prima facie showing of their entitlement to judgment as a matter of law (see Mueller v Fruchter, 71 AD3d 650, 651 [2010]). It was the defendants’ burden, as the parties moving, for summary judgment, to demonstrate affirmatively the merit of their defense, which cannot be sustained by pointing out gaps in the plaintiffs’ proof (see Gamer v Ross, 49 AD3d 598, 600 [2008]; Mennerich v Esposito, 4 AD3d 399, 400 [2004]; cf. Brady v Bisogno & Meyerson, 32 AD3d 410 [2006]). Accordingly, the Supreme Court properly denied those branches of the defendants’ motion which were for summary judgment dismissing the causes of action alleging legal malpractice.

*805However, the Supreme Court should have granted those branches of the defendants’ motion which were for summary judgment dismissing so much of the first, third, and fifth causes of actions as alleged breach of contract as duplicative of the causes of action alleging legal malpractice, as they arose from the same facts and do not allege distinct damages (see Financial Servs. Veh. Trust v Saad, 72 AD3d 1019, 1020 [2010]; Town of Wallkill v Rosenstein, 40 AD3d 972, 974 [2007]). In addition, the Supreme Court should have granted those branches of the defendants’ motion which were for summary judgment dismissing so much of the second, fourth, and sixth causes of action as sought declaratory relief. Declaratory relief is inappropriate since the plaintiffs have an adequate alternative remedy in the form of a cause of action alleging legal malpractice (see BGW Dev. Corp. v Mount Kisco Lodge No. 1552 of Benevolent & Protective Order of Elks of U.S. of Am., 247 AD2d 565, 568 [1998]; Apple Records v Capitol Records, 137 AD2d 50, 54 [1988]).

The parties’ remaining contentions are without merit. Angiolillo, J.E, Chambers, Roman and Miller, JJ., concur.

Case-law data current through December 31, 2025. Source: CourtListener bulk data.