                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 30, 2014                   517712
________________________________

DEBORAH KAUFMAN,
                    Appellant,
     v

MEDICAL LIABILITY MUTUAL
   INSURANCE COMPANY,
                    Defendant,              MEMORANDUM AND ORDER
      and

CARTER, CONBOY, CASE,
   BLACKMORE, MALONEY & LAIRD,
   P.C.,
                    Respondent.
________________________________


Calendar Date:   September 9, 2014

Before:   Lahtinen, J.P., Rose, Egan Jr. and Lynch, JJ.

                             __________


      Morton Povman, PC, Forest Hills (David M. Samel, New York
City, of counsel), for appellant.

      Martin Clearwater & Bell, LLP, New York City (Barbara D.
Goldberg of counsel), for respondent.

                             __________


Lahtinen, J.P.

      Appeal from an order of the Supreme Court (Devine, J.),
entered January 22, 2013 in Albany County, which, among other
things, granted a motion by defendant Carter, Conboy, Case,
Blackmore, Maloney & Laird, P.C. for summary judgment dismissing
the complaint against it.
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      The pertinent facts are set forth in an earlier appeal in
this action (92 AD3d 1057 [2012]), as well as an appeal in the
underlying medical malpractice case where the legal malpractice
alleged herein purportedly occurred (Norton v Nguyen, 49 AD3d 927
[2008]). Briefly stated, plaintiff and Patricia Nguyen, both
physicians practicing obstetrics and gynecology, and their
employer, Nathan Littauer Hospital and Nursing Home, were sued by
Jamie Lee Norton (and her husband derivatively) for medical
malpractice. Plaintiff, Nguyen and the hospital were insured by
defendant Medical Liability Mutual Insurance Company, which
assigned defense of the case to defendant Carter, Conboy, Case,
Blackmore, Maloney & Laird, P.C. (hereinafter defendant). The
Norton action proceeded to a jury trial, where defendant
represented plaintiff, Nguyen and the hospital. The jury found
in favor of the Nortons, apportioning liability between plaintiff
(35%) and Nguyen (65%), and awarding damages that were eventually
reduced to $3.2 million. Plaintiff commenced this action
asserting, among other things, that defendant's representation of
all defendants in the Norton action and use of a "united front"
defense resulted in a conflict of interest to the detriment of
plaintiff, and constituted legal malpractice under the
circumstances. Supreme Court granted defendant's motion for
summary judgment dismissing the complaint and plaintiff appeals.

      Elements that plaintiff must prove in a legal malpractice
action include that her attorney was negligent, she would have
succeeded on the merits "but for" her attorney's negligence and
she sustained actual and ascertainable damages (see Dombrowski v
Bulson, 19 NY3d 347, 350 [2012]; AmBase Corp. v Davis Polk &
Wardwell, 8 NY3d 428, 434 [2007]; Country Club Partners, LLC v
Goldman, 79 AD3d 1389, 1391 [2010]). On a motion for summary
judgment, defendant has the initial burden of presenting evidence
"establishing that plaintiff is unable to prove at least one of
these elements" (Geraci v Munnelly, 85 AD3d 1361, 1362 [2011]
[internal quotation marks and citation omitted]; see Guiles v
Simser, 35 AD3d 1054, 1055 [2006]). "[I]f the movant is
successful the opposing party must then submit proof in
admissible form sufficient to create a question of fact requiring
a trial" (Parmisani v Grasso, 218 AD2d 870, 871 [1995] [internal
quotation marks and citation omitted]; see Country Club Partners,
LLC v Goldman, 79 AD3d at 1391-1392). Supreme Court determined
                              -3-                517712

that defendant met its burden as to each of the elements of
negligence, proximate cause and damages, and that plaintiff
failed to submit sufficient proof to raise a triable issue as to
all those elements.

      Considering first the element of damages, the undisputed
proof established that plaintiff did not have to pay any part of
the verdict, which was covered in full by the insurer and
hospital. Plaintiff's contention that she sustained non-
pecuniary damages, such as a taint on her reputation resulting
from media and other coverage of the Norton verdict, is
unavailing since "the established rule limit[s] recovery in legal
malpractice actions to pecuniary damages" (Dombrowski v Bulson,
19 NY3d at 352; see Guiles v Simser, 35 AD3d at 1056; Wilson v
City of New York, 294 AD2d 290, 292 [2002]). Plaintiff continued
working at the hospital after the Norton verdict and, as her
contract was coming to an end about a year later, plaintiff was
offered a new contract. Indeed, Nguyen, who had been assigned
more culpability than plaintiff, had her contract renewed.
Although plaintiff did not like some of the changes in the terms
of the new contract, those same terms were also made mandatory
for other physicians and plaintiff was not singled out in such
regard because of the Norton verdict. Defendant produced proof
that plaintiff took the position during contract negotiations
that she desired to significantly scale back or eliminate the
obstetrics part of her practice at the hospital, a move that was
opposed by the hospital's other physicians. Plaintiff eventually
elected to resign from the hospital rather than renew her
contract. Her arguments that her difficulty in obtaining
employment with comparable compensation and that subsequent
potential increases in her malpractice premiums resulted directly
from the Norton verdict are speculative and unsupported in this
record (see generally Brodeur v Hayes, 18 AD3d 979, 981 [2005],
lv dismissed and denied 5 NY3d 871 [2005]).

      Defendant met its burden of establishing the absence of
actual and ascertainable damages, and plaintiff failed to raise a
triable issue on such element. Therefore, the legal malpractice
claim was properly dismissed. It is not necessary to discuss the
other elements of the legal malpractice claim found lacking by
Supreme Court.
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Rose, Egan Jr. and Lynch, JJ., concur.



ORDERED that the order is affirmed, with costs.




                       ENTER:




                       Robert D. Mayberger
                       Clerk of the Court
