        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

478
CA 14-02011
PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND DEJOSEPH, JJ.


SCOTT M. HARVEY, PLAINTIFF-APPELLANT,

                    V                             MEMORANDUM AND ORDER

HANDELMAN, WITKOWICZ AND LEVITSKY, LLP,
STEVEN M. WITKOWICZ AND STEVEN B. LEVITSKY,
DEFENDANTS-RESPONDENTS.


DIFILIPPO, FLAHERTY & STEINHAUS, PLLC, EAST AURORA (ROBERT D.
STEINHAUS OF COUNSEL), FOR PLAINTIFF-APPELLANT.

DUGGAN & PAWLOWSKI LLP, BUFFALO (JAMES J. DUGGAN OF COUNSEL), FOR
DEFENDANTS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Monroe County (Ann
Marie Taddeo, J.), entered March 18, 2014. The order granted the
motion of defendants for summary judgment and dismissed the complaint.

     It is hereby ORDERED that the order so appealed from is
unanimously modified on the law by denying the motion in part and
reinstating the complaint to the extent it seeks damages with respect
to defendants’ representation of plaintiff in the underlying personal
injury action against the County of Orleans and Nicole M. Gaulin in
her individual capacity and official capacity as an employee of the
County of Orleans, and as modified the order is affirmed without
costs.

     Memorandum: Plaintiff commenced this legal malpractice action
seeking damages for the alleged negligence of defendants in their
representation of him in a personal injury action arising from a motor
vehicle accident that occurred on March 27, 2007. In September 2007,
defendants commenced the underlying personal injury action on
plaintiff’s behalf against Nicole Gaulin, the owner and driver of the
other vehicle involved in the accident. Subsequently, defendants, on
plaintiff’s behalf, moved for permission to file a late notice of
claim on Gaulin’s employer, the County of Orleans (County), and on the
Kendall Central School District (District), the district to which
Gaulin was providing services on behalf of the County. That motion
was granted by Supreme Court, and the County and the District
appealed. We modified the order by affirming that part of the order
granting leave to file a notice of claim and by deleting that part of
the order which added the County and the District as defendants to the
action (Harvey v Gaulin [appeal No. 2], 68 AD3d 1789).
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                                                         CA 14-02011

      During the pendency of the prior appeal, a notice of claim was
served on the County and the District, and an examination pursuant to
General Municipal Law § 50-h was conducted. The amended complaint
adding the County and the District as defendants was filed on March 4,
2010.

     By order dated March 21, 2011, the court granted the motions of
the County and the District to dismiss the amended complaint against
them as time-barred. No appeal was taken from the March 21, 2011
order. On April 17, 2011, plaintiff filed a consent to change of
attorney and defendants’ representation of plaintiff ceased.

     By order dated November 7, 2011, the court granted the motion of
Gaulin’s estate, substituted pursuant to CPLR 1015, for summary
judgment dismissing the amended complaint against it for, inter alia,
failure to serve Gaulin with a notice of claim. No appeal was taken
from that order.

     Plaintiff then commenced this legal malpractice action alleging,
inter alia, that defendants were negligent in failing to timely
commence an action against the County and the District and in failing
to serve Gaulin with a notice of claim. Plaintiff’s complaint also
stated causes of action for fraud, breach of contract, and violation
of Judiciary Law § 487. The court subsequently granted defendants’
motion for summary judgment dismissing the complaint in this action in
its entirety on the basis that any negligence on defendants’ part was
not the proximate cause of plaintiff’s injury.

     We note at this juncture that plaintiff has abandoned any issues
related to the District (see Ciesinski v Town of Aurora, 202 AD2d 984,
984). To establish a cause of action for legal malpractice, “a
plaintiff must prove (1) that the defendant attorney failed to
exercise that degree of care, skill, and diligence commonly possessed
by a member of the legal community, (2) proximate cause, (3) damages,
and (4) that the plaintiff would have been successful in the
underlying action had the attorney exercised due care” (Phillips v
Moran & Kufta, P.C., 53 AD3d 1044, 1044-1045 [internal quotation marks
omitted]; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d
438, 442). “In order to prevail on a motion for summary judgment
seeking dismissal of a complaint for legal malpractice, a defendant
must establish that the plaintiff is unable to prove at least one
necessary element of the legal malpractice action, i.e., that the
plaintiff is unable to prove that he or she would have been successful
on the underlying claim but for [the defendant’s] negligence”
(Giardina v Lippes, 77 AD3d 1290, 1291 [internal quotation marks
omitted], lv denied 16 NY3d 702). Where a client fails to pursue an
appeal in an underlying action, in order to determine whether the
failure to pursue an appeal, as opposed to defendants’ negligence, was
the proximate cause of the client’s injury, we must determine whether
an appeal in the underlying action was “likely to succeed” (Grace v
Law, 24 NY3d 203, 210).

     Here, we conclude that defendants failed to meet their burden to
establish as a matter of law that any alleged negligence on their part
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                                                         CA 14-02011

resulting in the March 21, 2011 order dismissing of the amended
complaint against the County was not a proximate cause of plaintiff’s
damages (see Grace v Law, 108 AD3d 1173, 1176, affd 24 NY3d 203).
Thus, the court erred in granting the motion with respect to
plaintiff’s causes of action arising out of defendants’ handling of
the underlying personal injury action against the County. In support
of their motion for summary judgment, defendants’ own submissions
established that the action against the County was commenced 51 days
after the expiration of the limitations period. While the statute of
limitations set forth in General Municipal Law § 50-i was tolled from
the time plaintiff commenced the proceeding to obtain leave to file a
late notice of claim until the order granting that relief went into
effect (see Giblin v Nassau County Med. Ctr., 61 NY2d 67, 74), the
order granting such leave was effective when entered (see Toro v City
of New York, 271 AD2d 523, 523-524, lv denied 96 NY2d 705), and the
appeal from that order provided no further toll (see Dublanica v Rome
Hosp./Murphy Mem. Hosp., 126 AD2d 977, 977, lv denied 70 NY2d 605).
Thus, the limitations period expired on December 10, 2008, and the
amended complaint adding the County was not timely when filed on March
4, 2010 (see generally Ambrus v City of New York, 87 AD3d 341, 345).
We therefore further conclude that an appeal from the order dismissing
the action against the County on limitations grounds had no likelihood
of success.

     Plaintiff also contends that the court erroneously granted
summary judgment to defendants because an appeal from the November 7,
2011 order granting Gaulin’s estate summary judgment based upon a
failure to serve Gaulin with a notice of claim was not likely to
succeed. We agree. The court dismissed the action against Gaulin’s
estate on the ground that Gaulin was not served with a notice of claim
in her official capacity as a County employee. However, defendants
did not oppose the motion of Gaulin’s estate on that ground. Thus,
defendants failed to preserve for our review the issue for any
possible appeal by plaintiff and/or his substitute counsel (see
Antokol & Coffin v Myers, 30 AD3d 843, 845; Crawford v Windmere Corp.,
262 AD2d 268, 269). We therefore conclude that any appeal of the
dismissal on this issue was not likely to succeed, and “defendants
failed to establish as a matter of law that any negligence on their
part was not a proximate cause of plaintiff’s damages” (Grace, 108
AD3d at 1176). We further note that, in moving for summary judgment,
defendants did not raise the issue whether an appeal from the
dismissal of the amended complaint against Gaulin in her individual
capacity would have been “likely to succeed.” Nonetheless, the court
dismissed the complaint in its entirety. That too was error (see
generally Kuhl v Piatelli, 31 AD3d 1038, 1039; Clarke v Davis, 277
AD2d 902, 902). We therefore modify the order by denying the motion
insofar as it sought dismissal of plaintiff’s claims regarding
defendants’ representation of plaintiff in the underlying personal
injury action against the County and Gaulin, in both her official and
individual capacities, and we reinstate the complaint to that extent.

     Plaintiff’s remaining contentions have been rendered academic by
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                                         CA 14-02011

our determination.




Entered:   July 2, 2015         Frances E. Cafarell
                                Clerk of the Court
