In Pugliese v Martin Law Group, P.C. 2019 NY Slip Op 01810 Decided on March 13, 2019
the Appellate Division, Second Department reminds that legal malpractice consists of more than a mere mistake. Plaintiff must still prove proximate or “but for” cause. Merely failing to perfect an appeal is insufficient.
“ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the defendants’ motion which was for summary judgment dismissing the first cause of action, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed, without costs or disbursements.
In 2014, the plaintiffs commenced this action to recover damages for legal malpractice. In their first cause of action, the plaintiffs allege that the defendants committed legal malpractice when they failed to perfect and prosecute an appeal from an order dismissing an underlying action entitled Pugliese v Allstate Indemnity Company, commenced in the Supreme Court, Dutchess County, under Index No. 7265/09 (hereinafter the underlying action). The underlying action sought insurance coverage under a homeowners insurance policy for losses to property caused by a fire.
“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” (Harris v Barbera, 163 AD3d 534, 535). Even if a plaintiff establishes that an attorney failed to exercise the reasonable skill and knowledge commonly possessed by a member of the legal profession, the plaintiff must still demonstrate that he or she would have succeeded on the merits of the action but for the attorney’s negligence (see Di Giacomo v Michael S. Langella, P.C., 119 AD3d 636).
Here, we disagree with the Supreme Court’s determination that the defendants established their prima facie entitlement to judgment as a matter of law dismissing the first cause of action. The evidence submitted in support of the defendants’ motion did not establish, prima facie, that the plaintiffs could not prove a breach of a duty to perfect and prosecute an appeal in the [*2]underlying action (see Barnave v Davis, 108 AD3d 582). Furthermore, the defendants also failed to establish, prima facie, that had they perfected and prosecuted the appeal, the appeal would not have been successful (see Coccia v Liotti, 70 AD3d 747). Since the defendants failed to make their prima facie showing, we do not need to consider the sufficiency of the plaintiffs’ opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).”