Opinion
44 CA 15–02098
02-09-2018
Aloke CHAUDHURI, Plaintiff–Appellant, v. Margaret KILMER, as Administratrix of the Estate of Michael A. Jones, Jr., Deceased, Defendant–Respondent. (Appeal No. 1.)
GERARD A. STRAUSS, NORTH COLLINS, FOR PLAINTIFF–APPELLANT. AUGELLO & MATTELIANO, LLP, BUFFALO (JOSEPH A. MATTELIANO OF COUNSEL), FOR DEFENDANT–RESPONDENT.
GERARD A. STRAUSS, NORTH COLLINS, FOR PLAINTIFF–APPELLANT.
AUGELLO & MATTELIANO, LLP, BUFFALO (JOSEPH A. MATTELIANO OF COUNSEL), FOR DEFENDANT–RESPONDENT.
PRESENT: SMITH, J.P., CENTRA, CARNI, DEJOSEPH, AND WINSLOW, JJ.
MEMORANDUM AND ORDER
Memorandum:Plaintiff commenced this legal malpractice action against his former attorney (decedent), who died during the pendency of this appeal, for alleged damages arising from his representation of plaintiff in a Family Court custody/child support matter. In appeal No. 1, plaintiff appeals from an order that denied his motion for partial summary judgment on liability and granted defendant's cross motion for summary judgment dismissing the complaint. In appeal No. 2, plaintiff appeals from an order denying his motion to settle the record insofar as he sought to include in the record for appeal No. 1 a "Response Affidavit to Memorandum of Law." Addressing first the order in appeal No. 2, we conclude that, contrary to plaintiff's contention, that affidavit was properly excluded inasmuch as " ‘the record on appeal is ... limited to those papers that were before the court in deciding the motion [ ]’ and cross motion[ ]" ( Kai Lin v. Strong Health [Appeal No. 1], 82 A.D.3d 1585, 1586, 919 N.Y.S.2d 610 [4th Dept. 2011], lv dismissed in part and denied in part 17 N.Y.3d 899, 933 N.Y.S.2d 649, 957 N.E.2d 1153 [2011], rearg. denied 18 N.Y.3d 878, 939 N.Y.S.2d 291, 962 N.E.2d 783 [2012] ).
We likewise affirm the order in appeal No. 1. In order to recover damages in a legal malpractice action, a plaintiff must establish that the attorney "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, that this failure was the proximate cause of actual damages to plaintiff, and that the plaintiff would have succeeded on the merits of the underlying action but for the attorney's negligence" ( Hufstader v. Friedman & Molinsek, P.C., 150 A.D.3d 1489, 1489, 55 N.Y.S.3d 509 [3d Dept. 2017] [internal quotation marks omitted] ). In moving for summary judgment dismissing the complaint in such an action, a defendant must "present evidence in admissible form establishing that plaintiff is unable to prove at least one of [those] elements" ( id. at 1490, 55 N.Y.S.3d 509 [internal quotation marks omitted]; see New Kayak Pool Corp. v. Kavinoky Cook LLP, 125 A.D.3d 1346, 1348, 5 N.Y.S.3d 625 [4th Dept. 2015] ). Here, defendant met her initial burden on the motion by establishing that plaintiff is unable to prove proximate cause and damages, and plaintiff "failed to submit nonspeculative evidence in support of" those elements in opposition to defendant's motion ( New Kayak Pool Corp., 125 A.D.3d at 1349, 5 N.Y.S.3d 625 [internal quotation marks omitted]; see Hufstader, 150 A.D.3d at 1490–1491, 55 N.Y.S.3d 509 ; Barbieri v. Fishoff, 98 A.D.3d 703, 704–705, 950 N.Y.S.2d 384 [2d Dept. 2012] ).
It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.