                        NOT FOR PUBLICATION WITHOUT THE
                      APPROVAL OF THE APPELLATE DIVISION
     This opinion shall not "constitute precedent or be binding upon any court."
      Although it is posted on the internet, this opinion is binding only on the
        parties in the case and its use in other cases is limited. R. 1:36-3.




                                       SUPERIOR COURT OF NEW JERSEY
                                       APPELLATE DIVISION
                                       DOCKET NO. A-1899-16T3

HECTOR SERULLE,

        Plaintiff-Appellant,

v.

DARIO, YACKER, SUAREZ & ALBERT, LLC,
RONALD DARIO, ESQ., and
BRIAN EYERMAN, ESQ.,

     Defendants-Respondents.
______________________________________

              Submitted July 31, 2018 – Decided August 6, 2018

              Before Judges Mayer and Mawla.

              On appeal from Superior Court of New Jersey,
              Law Division, Bergen County, Docket No. L-
              6805-14.

              Jae Lee Law, PC, attorneys for appellant
              (Martin S. Cedzidlo, on the brief).

              Hardin,   Kundla,  McKeon  &   Poletto,  PA,
              attorneys for respondent (James P. McBarron,
              on the brief).

PER CURIAM

        Plaintiff Hector Serulle appeals from a November 28, 2016

order, which denied reconsideration of a September 16, 2016 order
granting defendants Dario, Yacker, Suarez & Albert, LLC, Ronald

Dario, Esq., and Brian Eyerman, Esq., summary judgment dismissing

plaintiff's legal malpractice complaint.           We affirm.

     We take the following facts from the record.                    In October

2009, Serulle allegedly tripped and fell on a sidewalk abutting a

private home owned by Adrian Sosa in Cliffside Park.                      Serulle

filed a personal injury action against Sosa, wherein defendants

represented him.      Serulle alleged he tripped on loose stone on top

of the sidewalk, which was the result of old concrete patchwork.

Serulle    also   alleged    his    fall   was   the   result   of    a    height

differential caused by a tree root beneath the sidewalk that pushed

a slab upwards.

     Prior to the trial, defendants took Sosa's deposition.                      He

testified he owned the residence for ten years.            He denied making

any repairs to the sidewalk or attempting to even the height

differential.     As part of the pre-trial discovery, defendants also

attempted to pull permits evidencing repairs to the sidewalk, but

discovered none.

     The    matter    was   tried   before   a   judge.    Serulle        offered

testimony, which was consistent with the allegations set forth in

his complaint.       The trial judge found Sosa enjoyed immunity as a

homeowner for injuries occurring on a public sidewalk abutting his

property.    The judge also found a lack of evidence "Sosa, actually

                                       2                                  A-1899-16T3
did the repair, or [that] he, himself, made the property or the

sidewalk more dangerous than it was." The judge entered a directed

verdict in favor of Sosa.

     Subsequently,      Serulle     filed    a    complaint      in    this     legal

malpractice matter.      The complaint alleged defendants "failed to

conduct a proper investigation and discovery, both prior to the

institution    of    litigation,    and/or       during    the   litigation,         to

determine   the     construction,    repairs,      and     remediation        of   the

hazardous condition of the sidewalk of the Sosa property." Serulle

also alleged defendants

            failed to produce the adequate proofs and
            evidence of the history of the construction,
            repairs and remediation of the hazardous
            condition of the property, due to their lack
            of proper investigation and discovery [and]
            also failed to adequately discuss or prepare
            [him] for his appearance in court, or discuss
            with him, the testimony which would be offered
            to the court.

     Serulle retained Vivian Goldblatt of Arch Forensics, LLC who

opined   the   repairs    were     improperly       made    to   the    sidewalk.

Specifically, Goldblatt's report and deposition testimony were

that the repairs to the sidewalk were made with Quikrete, which

was the wrong construction material to use, because it had broken

up into a jigsaw pattern and become a hazard.

     Defendants filed a motion for summary judgment, which the

motion judge granted.      The judge found in order to succeed in his

                                      3                                       A-1899-16T3
legal malpractice claim, Serulle had to prove his underlying

negligence claim against Sosa.       Specifically, the judge stated

"[Serulle] has to prove [Sosa,] or an identified predecessor in

title, made the improper repair . . . and prove that with effort

that could be made by any trial lawyer, that these defendants

should have been able to prove these facts in the underlying or

original action."   The judge concluded Serulle's "present lawyers

ha[ve] not established these facts" and therefore, "[Serulle's]

present counsel [cannot] be heard to argue that [Serulle's] prior

counsel should have been able to do so[.]"    This appeal followed.

     Appellate courts "review the trial court's grant of summary

judgment de novo under the same standard as the trial court."

Templo Fuente De Vida Corp. v. Nat'l Union Fire Ins. Co. of

Pittsburgh, 224 N.J. 189, 199 (2016).    The court considers all of

the evidence submitted "in the light most favorable to the non-

moving party," and determines if the moving party is entitled to

summary judgment as a matter of law.    Brill v. Guardian Life Ins.

Co. of Am., 142 N.J. 520, 523 (1995).    The court may not weigh the

evidence and determine the truth of the matter; rather, the court's

role is to determine whether there is a genuine issue for trial.

Id. at 540.   A party seeking summary judgment must show that there

is no genuine issue as to any material fact challenged, and that



                                 4                           A-1899-16T3
he or she is entitled to a judgment or order as a matter of law.

R. 4:46-2(c).

     On appeal, Serulle argues defendants "failed to conduct basic

discovery until after the discovery end date, and only then

conducted a deposition of [Sosa]."     Serulle asserts defendants

"produced no investigation or proofs as to the negligence of [Sosa]

due to [defendants'] lack of attention to the file."       Serulle

argues Goldblatt's deposition testimony supported the inference

Sosa had negligently performed repairs on the sidewalk.       Thus,

Serulle asserts there was enough of a dispute in fact to thwart

granting summary judgment to defendants.

     A claim for "[l]egal malpractice is a variation on the tort

of negligence" relating to an attorney's representation of a

client.   Garcia v. Kozlov, Seaton, Romanini & Brooks, PC, 179 N.J.

343, 357 (2004).     To establish a prima facie case of legal

malpractice, a plaintiff must demonstrate: (1) the existence of

an attorney-client relationship creating a duty of care upon the

attorney to the plaintiff, (2) the breach of that duty by the

attorney, and (3) such breach was the proximate cause of the

damages sustained by the plaintiff.    Jerista v. Murray, 185 N.J.

175, 190-91 (2005); Conklin v. Hannoch Weisman, PC, 145 N.J. 395,

416 (1996).



                                 5                          A-1899-16T3
     With respect to the proximate cause element, "[t]he client

bears the burden of proving by a preponderance of competent

credible evidence that injuries were suffered as a proximate

consequence   of   the   attorney's       breach   of   duty."    Sommers    v.

McKinney, 287 N.J. Super. 1, 10 (App. Div. 1996) (citing Lieberman

v. Emp'rs Ins. of Wausau, 84 N.J. 325, 342 (1980)).              An attorney

who breaches his or her duty of care to a client is liable only

for the losses proximately caused by such a breach.              2175 Lemoine

Ave. v. Finco, Inc., 272 N.J. Super. 478, 487-88 (App. Div. 1994);

Lamb v. Barbour, 188 N.J. Super. 6, 12 (App. Div. 1982).                    "To

establish the requisite causal connection between a defendant's

negligence and plaintiff's harm, plaintiff must present evidence

to support a finding that defendant's negligent conduct was a

'substantial factor' in bringing about plaintiff's injury, even

though there may be other concurrent causes of the harm."               Froom

v. Perel, 377 N.J. Super. 298, 313 (App. Div. 2005) (quoting

Conklin, 145 N.J. at 419).            The burden of proving a causal

relationship rests with the client and cannot be "satisfied by

mere conjecture, surmise or suspicion."            Sommers, 287 N.J. Super.

at 10.

     "The most common way to prove the harm inflicted by [legal]

malpractice is to proceed by way of a 'suit within a suit' in

which a plaintiff presents the evidence that would have been

                                      6                               A-1899-16T3
submitted at a trial had no malpractice occurred."       Garcia, 179

N.J. at 358.   "The 'suit within a suit' approach aims to clarify

what would have taken place but for the attorney's malpractice."

Ibid. (citing Gautam v. De Luca, 215 N.J. Super. 388, 397 (App.

Div. 1987)).      "At such a trial, 'plaintiff has the burden of

proving by a preponderance of the evidence that (1) he would have

recovered a judgment in the action against the main defendant, (2)

the amount of that judgment, and (3) the degree of collectability

of such judgment.'"      Ibid. (quoting Hoppe v. Ranzini, 158 N.J.

Super. 158, 165 (App. Div. 1978)).

     Accordingly, Serulle must show he would have succeeded in his

negligence action against Sosa but for the defendants' negligent

handling of his case. To sustain a cause of action for negligence,

against Sosa, Serulle had to prove four core elements: (1) a duty

of care, (2) breach of that duty, (3) proximate cause, and (4)

actual damages.    Polzo v. Cty. of Essex, 196 N.J. 569, 584 (2008).

The burden is on Serulle to establish these "elements by some

competent proof[.]"     Davis v. Brickman Landscaping, Ltd., 219 N.J.

395, 406 (2014) (quoting Overby v. Union Laundry Co., 28 N.J.

Super. 100, 104 (App. Div. 1953)).

     At the outset, we note Serulle does not argue the motion

judge   misidentified    the   applicable   law.   Therefore,    absent

Serulle's allegations of negligent repair, Sosa had no affirmative

                                    7                           A-1899-16T3
duty to maintain the sidewalk.       Indeed, "[a]n abutting owner is

not liable for injuries suffered by a pedestrian on a defective

or dilapidated sidewalk even though it constitutes a nuisance,

unless the proofs show that that owner or his predecessor in title

participated in the creation or continuance of the nuisance."

Moskowitz v. Herman, 16 N.J. 223, 225 (1954).         "The owner of

premises abutting a public sidewalk is not responsible for defects

therein caused by the action of the elements or by wear and tear

incident to public use, and not caused by his own wrongful act."

Ibid.

     Instead, in an effort to prove the merits of the underlying

action, Serulle offered Goldblatt's expert report and deposition

testimony, which opined the improper repairs made were not old,

thereby implicating Sosa as the cause for the negligent repair.

Indeed, Goldblatt testified "[w]e did make a determination that

the rock, it didn't happen within a couple of weeks.     It was most

likely at least a few months, because again, it wasn't a new

Quikrete patch work there."      Based on this testimony, Serulle

argues

          the active misconduct and negligence of . . .
          Sosa was not merely in the construction of a
          patch using substandard materials, but in
          maintaining a condition that could be deemed
          a nuisance, he was actively taking broken
          pieces of concrete aggregate and periodically


                                 8                           A-1899-16T3
            jigsawing loose pieces of concrete together
            along his sidewalk.

       We disagree.    Neither the expert report nor the expert's

deposition testimony suggested Sosa participated in either the

construction or repair of the sidewalk.         Goldblatt testified her

report did not attempt to determine the age of the repair work.

She also testified she did not make a determination of how long

the sidewalk was in the allegedly hazardous state.                Moreover,

Goldblatt testified "we [Arch Forensics] . . . understand[] that

Mr. Sosa did not put that concrete patchwork in."                 Goldblatt

testified the age of the Quikrete repair could be a few months,

but also could be less than thirty years old.         Sosa had only owned

the property for ten years.       Therefore, Goldblatt's testimony did

not demonstrate the alleged repair was attributable to Sosa.

       Thus, even if defendants failed to conduct an investigation

beyond Sosa's deposition, Goldblatt's inability to identify the

age of the original sidewalk, the age of the repair, and Sosa's

role   in   the   making   the   alleged   repair   failed   to   prove   the

underlying negligence case.        The record lacks any other evidence

to demonstrate further investigation would have uncovered evidence

of Sosa's liability.       Therefore, the duty, breach, and proximate

causation elements of the underlying negligence case were not

established.      Without the ability to prove the "case within a


                                      9                              A-1899-16T3
case," Serulle lacked a cause of action for malpractice against

defendants, and summary judgment in their favor was appropriate.

    Affirmed.




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