Dominguez v Mirman, Markovits & Landau, P.C.  2020 NY Slip Op 00845
Decided on February 5, 2020 Appellate Division, Second Department is not entirely clear on how the underlying case ended.  Plaintiff pro-se might have settled the case and then discontinued, or he might have discontinued in mere pique.  However, neither situation implicates the defendants here.

“The plaintiff was injured in a construction accident on October 3, 2007, when the bucket of an excavator machine struck his leg. The plaintiff hired the defendants as his attorneys and commenced an action to recover damages for personal injuries, alleging common-law negligence and violations of Labor Law §§ 200, 240(1), and 241(6).

The property owner moved for summary judgment dismissing the complaint insofar as asserted against him, and the plaintiff cross-moved for summary judgment on the issue of liability on the Labor Law §§ 240(1) and 241(6) causes of action. In an order dated May 6, 2011, the Supreme Court granted those branches of the owner’s motion which were for summary judgment dismissing the Labor Law §§ 240(1) and 241(6) causes of action insofar as asserted against him, denied those branches of the owner’s motion which were for summary judgment dismissing the common-law negligence and Labor Law § 200 causes of action insofar as asserted against him, and denied the plaintiff’s cross motion.

Thereafter, in November 2011, the defendants moved in the personal injury action to be relieved as counsel for the plaintiff. The Supreme Court granted that motion in an order dated January 5, 2012, and in February 2012, the plaintiff, acting pro se, discontinued the personal injury action.

On April 17, 2013, the plaintiff commenced this action against the defendants to recover damages for legal malpractice. The defendants moved for summary judgment dismissing the complaint, arguing that the plaintiff could not demonstrate that “he would have obtained a more favorable outcome but for’ [the defendants’] alleged negligence.” In an order dated April 27, 2017, the Supreme Court granted the defendants’ motion. The plaintiff appeals.

“In moving for summary judgment dismissing a complaint alleging legal malpractice, a defendant must present evidence establishing, prima facie, that it did not breach the duty to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, or that the plaintiff did not sustain actual and ascertainable damages as a result of such deviation” (Mazzurco v Gordon, 173 AD3d 1003, 1003; see Panos v Eisen, 160 AD3d 759). Here, the defendants met that burden.”