Plaintiff naturally thought that when the AD reversed dismissal of the complaint under CPLR 3211 it would have some effect on a later motion for summary judgment. This was incorrect. In Harris v Barbera 2018 NY Slip Op 05023 Decided on July 5, 2018 Appellate Division, Second Department (without much explanation) held that while the complaint stated a cause of action for failing to illuminate marital dissipation, the proofs were not.
“Initially, contrary to the plaintiff’s contention, this Court’s order on the prior appeal with respect to the defendants’ motion pursuant to CPLR 3211(a) to dismiss the complaint does not preclude the present motion pursuant to CPLR 3212 for summary judgment dismissing the complaint (see Bernard v Grenci, 48 AD3d 722, 724; see also Beach v Touradji Capital Mgt., LP, 128 AD3d 501, 502).
A plaintiff in an action alleging legal malpractice must prove that the defendant attorney’s failure to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession proximately caused the plaintiff to suffer damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442; Ragunandan v Donado, 150 AD3d 1289, 1290). “The standard to which the defendant’s conduct is to be compared is not that of the most highly skilled attorney, nor is it that of the average member of the legal profession, but that of an attorney who is competent and qualified” (Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 846). To establish proximate causation, the plaintiff must show that she would have prevailed in the underlying action or would not have incurred any damages, but for the defendant attorney’s [*2]negligence (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442; Kluczka v Lecci, 63 AD3d 796, 797; Wray v Mallilo & Grossman, 54 AD3d 328, 329).”
“Here, the defendants met their burden by establishing, prima facie, that they did not fail to exercise the requisite skill and knowledge in their representation of the plaintiff (see Smith, Gambrell & Russell, LLP v Telecommunications Sys., Inc., 155 AD3d 457). The defendants also established, prima facie, that, in any event, their alleged negligence did not proximately cause the plaintiff’s alleged damages. In opposition, the plaintiff failed to raise a triable issue of fact (see Richmond Holdings, LLC v David S. Frankel, P.C., 150 AD3d 1168, 1168). Accordingly, the defendants’ motion for summary judgment dismissing the complaint was properly granted.”