                            State of New York
                     Supreme Court, Appellate Division
                        Third Judicial Department
Decided and Entered: March 5, 2015                       519243
________________________________

ROGER A. HINSDALE,
                      Appellant,
     v                                        MEMORANDUM AND ORDER

MARK A. WEIERMILLER et al.,
                    Respondents.
________________________________


Calendar Date:   January 7, 2015

Before:   Lahtinen, J.P., Garry, Rose and Devine, JJ.

                               __________


      Edward E. Kopko, PC, Ithaca (Edward E. Kopko of counsel),
for appellant.

      Williamson, Clune & Stevens, Ithaca (John H. Hanrahan III
of counsel), for respondents.

                               __________


Lahtinen, J.P.

      Appeal from an order of the Supreme Court (Mulvey, J.),
entered July 3, 2013 in Chemung County, which denied plaintiff's
motion for summary judgment.

      Defendant Mark A. Weiermiller (hereinafter defendant)
represented plaintiff in a real estate transaction involving
property where the deed had apparently been lost and never
recorded by plaintiff's father when he originally acquired the
property. Because of the title defect, the terms of the April
2007 purchase and sale agreement included a provision that the
price of $325,000 would be reduced by $100,000 to $225,000 if
plaintiff could not obtain a judgment quieting title within one
year, i.e., by April 10, 2008, with time being of the essence.
According to defendant, he encountered several significant and
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unanticipated difficulties in securing the judgment, which was
not obtained until May 6, 2008. The buyer nonetheless agreed to
pay part of the $100,000 reduction amount authorized by the
agreement, resulting in plaintiff allegedly receiving $74,963
less than if a judgment had been obtained within one year.
Plaintiff commenced this legal malpractice action against
defendant and his law firm for the $74,963 loss he had sustained.
Supreme Court denied plaintiff's motion for summary judgment.
Plaintiff appeals.

      We affirm. "In an action to recover damages for legal
malpractice, a plaintiff must demonstrate that the attorney
'failed to exercise the ordinary reasonable skill and knowledge
commonly possessed by a member of the legal profession' and that
the attorney's breach of this duty proximately caused plaintiff
to sustain actual and ascertainable damages" (Rudolf v Shayne,
Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007], quoting
McCoy v Feinman, 99 NY2d 295, 301 [2002]). Here, defendant
stated in his affidavit that, when plaintiff asked him before
signing the agreement whether he "could be 90% sure" that title
could be quieted within one year, he responded that he "could not
give [plaintiff] any percentage of certainty but that in [his]
judgment [he] thought [he] would be able to get it done in that
time." However, he thereafter allegedly encountered many
unexpected difficulties in attempting to gather information
necessary for the action. He explained that the person who had
transferred the property to plaintiff's father had died many
years earlier, leaving numerous heirs scattered throughout the
country. He eventually had to hire a private investigator to
assist in locating heirs and, once located, some were
uncooperative. Defendant's time records substantiated work in
every month, sometimes many hours, as he attempted to gather
necessary information and meet the deadline. Since he submitted
proof of ongoing efforts that were met with considerable
problems, this case is different from the situation where, for
example, an attorney simply fails to act in a timely fashion
believing a longer statute of limitations controls (see e.g.
Bergin v Grace, 39 AD3d 1017, 1018 [2007]). Viewing the evidence
in a light most favorable to defendant (see M & R Ginsburg, LLC v
Segal, Goldman, Mazzotta & Siegel, P.C., 90 AD3d 1208, 1210-1211
[2011]) and accepting for purposes of this motion his proof
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regarding the caution he gave at the outset, his efforts and the
unanticipated difficulties, the issue of whether he exercised
reasonable skill in light of all the circumstances cannot be
determined as a matter of law.

     Garry, Rose and Devine, JJ., concur.



     ORDERED that the order is affirmed, with costs.




                             ENTER:




                             Robert D. Mayberger
                             Clerk of the Court
