Opinion
94426.
Decided and Entered: January 15, 2004.
Appeal from an order of the Supreme Court (Bradley, J.), entered October 18, 2002 in Ulster County, which granted defendants' motion for partial summary judgment.
Mainetti, Mainetti O'Connor, Kingston (Edward C. Bruno of counsel), for appellant.
Rivkin Radler, Uniondale (Harris J. Zakarin of counsel), for respondents.
Before: Mercure, J.P., Spain, Carpinello, Mugglin and Lahtinen, JJ.
MEMORANDUM AND ORDER
Plaintiff is a former State Trooper who, after sustaining on-the-job injuries, was originally awarded accidental disability retirement benefits at 50% of his salary. Believing that he was entitled to 75%, plaintiff embarked on a journey through state and federal courts, unsuccessfully raising constitutional and civil rights challenges to the percentage then utilized under the Retirement and Social Security Law for the calculation of his retirement benefits (see Miszko v. Regan, 194 A.D.2d 858, lv denied 82 N.Y.2d 656; Miszko v. Attorney General of State of N.Y., 164 F.3d 618 [1998], cert denied 525 U.S. 1123). However, in 1997 and during the pendency of plaintiff's appeal to the Second Circuit Court of Appeals, the New York Legislature retroactively amended the Retirement and Social Security Law to provide State Troopers retirement benefits based on a 75% rate of salary, effectively affording plaintiff with the relief that he sought and rendering his retirement claim moot (see Retirement and Social Security Law § 363-b; Miszko v. Attorney General of State of N.Y., supra).
Plaintiff retained defendants to represent him in his federal action and gave them a $10,000 retainer fee but, dissatisfied, retained new counsel within a year. He eventually commenced the instant action in early 1998 alleging conversion, legal malpractice and breach of contract. Supreme Court granted partial summary judgment to defendants, finding that plaintiff could not prevail on any of the causes of action underlying his legal malpractice claim and, thus, dismissed the malpractice claim. The court also dismissed plaintiff's breach of contract claim on the basis that it was duplicative of the legal malpractice claim. The conversion claim was not addressed in defendants' motion papers or by Supreme Court. Plaintiff appeals.
To succeed on a claim of legal malpractice, it was incumbent upon plaintiff to demonstrate that defendants were "`negligent, that the negligence was a proximate cause of the loss sustained and that plaintiff suffered actual and ascertainable damages'" (Ehlinger v. Ruberti, Girvin Ferlazzo, 304 A.D.2d 925, 926, quoting Busino v. Meachem, 270 A.D.2d 606, 609). As discussed, plaintiff has obtained all the relief that he requested in the underlying action by virtue of the amendment to the Retirement and Social Security Law and he has failed to articulate any other identifiable damages. The malpractice claim, therefore, was properly dismissed because "[a]bsent proof of actual damages, a claim for attorney malpractice is unsupportable" (Ressis v. Wojick, 105 A.D.2d 565, 567, lv denied 64 N.Y.2d 609; see Busino v. Meachem, supra at 609; Giambrone v. Bank of New York, 253 A.D.2d 786, 787).
Plaintiff has not raised any argument with respect to the dismissal of his breach of contract claim and, thus, has abandoned that issue (see Amo v. Little Rapids Corp., 301 A.D.2d 698, 702 n 3 [2003], appeal dismissed, lv denied 100 N.Y.2d 531; Blumenkrantz v. May, 293 A.D.2d 850, 852-853). In any event, the breach of contract cause of action as pleaded in the complaint is merely a redundant pleading of the malpractice claim (see Cherry v. Decker, 280 A.D.2d 867, 868).
Plaintiff has included a cause of action for conversion which is still pending. Defendants' motion for summary judgment did not address plaintiff's conversion claim and we conclude that, in granting defendants' motion, Supreme Court interpreted it as seeking summary judgment only on the malpractice and breach of contract claims.
Mercure, J.P., Carpinello, Mugglin and Lahtinen, JJ., concur.
ORDERED that the order is affirmed, with costs.