McGowan v. Frankie, Smirti & Gentile

In an action to recover damages for legal malpractice, etc., the plaintiffs appeal from an order of the Supreme Court, Richmond County (Minardo, J.), dated September 1, 2000, which granted the defendant’s motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. The Supreme Court correctly concluded that had the former attorney for the plaintiff William J. McGowan (hereinafter the plaintiff) properly prosecuted the plaintiffs proceeding pursuant to CPLR article 78, the plaintiff would not have prevailed on the merits of that case (see, Davis v Klein, 88 NY2d 1008, 1009-1010; Maillet v Campbell, 280 AD2d 526; Martin v Pasternack, Popish & Reiff, 259 AD2d 526, 527; Lagana v Willner, 267 AD2d 210). A review of the hearing evidence discloses that the determination of the Administrative Law Judge was not irrational and was supported by substantial evidence (see, Matter of Pell v Board of Educ., 34 NY2d 222, 230-231).. Nor would the plaintiff have prevailed on his contention that the recommended penalty — demotion from rank of sergeant to that of police officer — was “shocking to one’s sense of fairness” (Matter of Pell v Board of Educ., supra, at 233 [internal quotation marks omitted]; Matter of Egan v Von Essen, 260 AD2d 479; Matter of Hundley v Kralik, 247 AD2d 616). Therefore, the Supreme Court properly granted the defendant’s motion for summary judgment dismissing the complaint. McGinity, J. P., Luciano, Feuerstein and Prudenti, JJ., concur.