Opinion
CA 05-00961.
December 22, 2005.
Appeal from an order of the Supreme Court, Wayne County (Thomas M. Van Strydonck, J.), entered January 20, 2005 in a legal malpractice action. The order, inter alia, granted defendants' motion to dismiss the complaint.
Present: Pigott, Jr., P.J., Green, Pine, Lawton and Hayes, JJ.
It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.
Memorandum: Plaintiffs commenced this legal malpractice action alleging that defendants failed to preserve for appellate review the contention of plaintiffs that an "error in judgment" charge was erroneously given at the trial in their underlying medical malpractice action. This Court determined in the prior appeal from the judgment in the medical malpractice action that plaintiffs' general objection to the charge was insufficient to preserve for our review plaintiffs' contention that the charge was inapplicable ( Ellsworth v. Chan, 270 AD2d 811, 811-812, lv denied 95 NY2d 757). We nevertheless conclude, however, that Supreme Court properly granted defendants' motion to dismiss the complaint herein because plaintiffs did not set forth the requisite factual allegations demonstrating that, but for defendants' alleged negligence, there would have been a more favorable outcome in the underlying action ( see Tortura v. Sullivan Papain Block McGrath Cannavo, P.C., 21 AD3d 1082; Ferdinand v. Crecca Blair, 5 AD3d 538, 539-540, lv denied 3 NY3d 609; Lavin Kleiman v. J.M. Heinike Assoc., Inc., 221 AD2d 919).