Andzel v. Cosgrove

— Appeal from an order of the Supreme Court, Erie County (Joseph D. Mintz, J.), entered June 8, 2007 in a legal malpractice action. The order denied defendants’ motion for summary judgment dismissing the complaint. It is hereby ordered that the order so appealed from is unanimously affirmed without costs. Memorandum: Plaintiffs commenced this legal malpractice action seeking damages arising from defendants’ representation [1227] of them in an action to recover for injuries allegedly sustained by plaintiff Alice Andzel. Supreme Court properly denied defendants’ motion for summary judgment dismissing the complaint. “In order to establish their entitlement to judgment as a matter of law, defendants had to present evidence in admissible form establishing that plaintiffs are unable to prove at least one necessary element of a legal malpractice action” (Potter v Polozie, 303 AD2d 943, 943 [2003]; see Ippolito v McCormack, Damiani, Lowe & Mellon, 265 AD2d 303 [1999]). Here, defendants failed to establish that plaintiffs would have been unsuccessful in the underlying action (see Middleton v Kenny, 286 AD2d 957 [2001]), and defendants thus failed to establish that any alleged negligence on their part was not a proximate cause of plaintiffs’ damages with respect to that action (see Giardina v Lippes, 34 AD3d 1220, 1221 [2006]). Present — Scudder, P.J., Centra, Lunn and Pine, JJ.