                          State of New York
                   Supreme Court, Appellate Division
                      Third Judicial Department
Decided and Entered: October 23, 2014                   517361
________________________________

M & R GINSBURG, LLC,
                    Plaintiff,
      v

SEGEL, GOLDMAN, MAZZOTTA &
   SIEGEL, P.C., et al.,
                    Defendants
                    and Third-
                    Party                   MEMORANDUM AND ORDER
                    Plaintiffs-
                    Appellants;

GLEASON, DUNN, WALSH AND
   O'SHEA, P.C., et al.,
                    Third-Party
                    Defendants-
                    Respondents.
________________________________


Calendar Date:   September 3, 2014

Before:   Peters, P.J., Lahtinen, Garry, Rose and Clark, JJ.

                             __________


      Smith, Sovik, Kendrick & Sugnet, PC, Syracuse (Laurence F.
Sovik of counsel), for defendants and third-party plaintiffs-
appellants.

      Hiscock & Barclay, Albany (David B. Cabiniss of counsel),
for third-party defendants-respondents.

                             __________
                              -2-                517361

Lahtinen, J.

      Appeal from an order of the Supreme Court (Nolan Jr., J.),
entered November 27, 2012 in Saratoga County, which granted
third-party defendants' motion for summary judgment dismissing
the third-party complaint.

      The underlying facts are set forth fully in our decision in
a prior appeal in this legal malpractice action (90 AD3d 1208
[2011]), as well as our decisions in two appeals involving
litigation relevant to this action (M & R Ginsburg, LLC v Orange
Canyon Dev. Co., LLC, 84 AD3d 1470 [2011]; M & R Ginsburg, LLC v
Orange Canyon Dev. Co., LLC, 69 AD3d 1181 [2010]). Plaintiff
commenced this malpractice action against defendants in 2009. In
2012, defendants brought the third-party action alleging that,
after their purported malpractice, legal advice by third-party
defendants resulted in unnecessary litigation that exacerbated
plaintiff's damages. Third-party defendants moved to dismiss the
third-party complaint, which was treated by the parties and
Supreme Court as a motion for summary judgment (see Gregware v
Key Bank of N.Y., 218 AD2d 859, 861 [1995], lv denied 87 NY2d 803
[1995]).1 Supreme Court granted third-party defendants' motion
and defendants appeal.

      We affirm. Third-party defendants established with regard
to the complex legal issue facing plaintiff that the legal course
they recommended – after consulting with plaintiff and defendants
– was "one among several reasonable courses of action [and did]
not constitute malpractice" (Rosner v Paley, 65 NY2d 736, 738
[1985]; see Bixby v Somerville, 62 AD3d 1137, 1139 [2009]).
Although defendants speculate that a different strategy might
have ultimately led to a more beneficial result for plaintiff,


    1
        Although summary judgment was not listed as a form of
relief in their notice of motion, third-party defendants set
forth and argued for, among other things, summary judgment in an
affidavit submitted with their motion. Defendants do not
challenge on appeal the treatment of the motion as one for
summary judgment, and the record reflects that the parties
charted a summary judgment course.
                              -3-                  517361

such speculation as to other possible legal avenues is
insufficient to implicate malpractice (see Rosner v Paley, 65
NY2d at 738). Defendants' allegations and proof regarding third-
party defendants' representation of plaintiff did not raise a
triable issue when measured by the applicable standard in a legal
malpractice action (see Russo v Feder, Kaszovitz, Isaacson,
Weber, Skala & Bass, LLP, 301 AD2d 63, 69 [2002]; Bassim v
Halliday, 234 AD2d 628, 630 [1996], appeal dismissed 89 NY2d 1001
[1997]; Bernstein v Oppenheim & Co., 160 AD2d 428, 430 [1990]).

      Third-party defendants' argument regarding the effect on
this appeal of a general release that they recently received from
plaintiff, which is not in the record, is academic.

     Peters, P.J., Garry, Rose and Clark, JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
