Opinion
12039 Index No. 100135/14 Case No. 2019-2624
10-13-2020
Lewis KIVO, Plaintiff–Appellant, v. LOUIS F. BURKE, P.C., et al., Defendants–Respondents.
Mitchell L. Perry, White Plains, for appellant. Lewis Kivo, appellant pro se. Winget, Spadafora & Schwartzberg, LLP, New York (Anthony Douglas Green of counsel), for respondents.
Mitchell L. Perry, White Plains, for appellant.
Lewis Kivo, appellant pro se.
Winget, Spadafora & Schwartzberg, LLP, New York (Anthony Douglas Green of counsel), for respondents.
Gische, J.P., Singh, Kennedy, Mendez, JJ.
Order, Supreme Court, New York County (Alan C. Marin, J.), entered January 23, 2019, which, insofar as appealed from as limited by the briefs, granted defendants' motion for summary judgment dismissing the complaint, unanimously affirmed, without costs.
To support a claim for legal malpractice, a plaintiff must "establish that [defendants] 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 plaintiff to sustain actual and ascertainable damages" ( Nomura Asset Capital Corp. v. Cadwalader, Wickersham & Taft LLP, 26 N.Y.3d 40, 49, 19 N.Y.S.3d 488, 41 N.E.3d 353 [2015] [internal quotation marks omitted] ). An attorney's conduct or inaction is the proximate cause of a plaintiff's damages if, "but for" the attorney's negligence, " ‘the plaintiff would have succeeded on the merits of the underlying action’ " ( id. at 50, 19 N.Y.S.3d 488, 41 N.E.3d 353, quoting Ambase Corp. v. Davis Polk & Wardwell, 8 N.Y.3d 428, 434, 834 N.Y.S.2d 705, 866 N.E.2d 1033 [2007] ). Where a plaintiff prevailed in the underlying action and is claiming that his or her award should have been greater, they must show that, but for the defendant's negligence, the outcome "would have resulted in a higher award" ( Agate v. Herrick, Feinstein LLP, 57 A.D.3d 341, 342, 870 N.Y.S.2d 250 [1st Dept. 2008] ).
In this legal malpractice action, defendants, through their expert's affidavit, established prima facie entitlement to judgment as a matter of law by demonstrating that plaintiff could not prove that, but for their alleged negligence, he would have been awarded a greater recovery in an underlying FINRA (Financial Industry Regulatory Authority) litigation (see Nomura Asset Capital Corp. at 49–50, 19 N.Y.S.3d 488, 41 N.E.3d 353 ; Agate 57 A.D.3d at 342, 870 N.Y.S.2d 250 Defendants' showing was not refuted by plaintiff who was required to submit an expert affidavit in opposition. Absent an expert's affidavit, plaintiff's unsupported allegations that defendants' breached their duty of care by, among other things, not discovering certain proof to support his claims in the underlying action are insufficient to raise a triable issue of fact (see Tran Han Ho v. Brackley, 69 A.D.3d 533, 534, 894 N.Y.S.2d 391 [1st Dept. 2010], lv denied 15 N.Y.3d 950, 917 N.Y.S.2d 90, 942 N.E.2d 300 [2010] ; Merlin Biomed Asset Mgt., LLC v. Wolf Block Schorr & Solis–Cohen LLP, 23 A.D.3d 243, 803 N.Y.S.2d 552 [1st Dept. 2005] ). Plaintiff's dissatisfaction with how defendants conducted the arbitration hearing fails to amount to malpractice, absent a showing that defendants' conduct was unreasonable (see Kassel v. Donohue, 127 A.D.3d 674, 6 N.Y.S.3d 916 [1st Dept. 2015], lv dismissed 26 N.Y.3d 940, 17 N.Y.S.3d 57, 38 N.E.3d 800 [2015] ).