Gajek v Schwartzapfel, Novick, Truowski & Marcus,  P.C.  2014 NY Slip Op 32418(U)  September 8, 2014  Supreme Court, Suffolk County  Docket Number: 12-2375  Judge: Ralph T. Gazzillo discusses the burden for both plaintiff and defendant.

For Defendant:  Schwartzapfel and Platt now move for summary judgment dismissing the complaint and all cross claims against Platt. In support of their motion, the moving parties submit, among other things, the pleadings, Platt’s affidavit, and copies of the preliminary conference order and two compliance conference orders issued in this action. The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issue of fact (see Alvarez v Prospect Hospital, 68 NY2d 320, 508 NYS2d 923 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 487 NYS2d 316 [1985]). The burden then shifts to the party opposing the motion which must produce evidentiary proof in admissible form sufficient to require a trial of the material issues of fact (Roth v Barreto, 289 AD2d 557, 735 NYS2d 197 [2d Dept 2001]; Rebecchi v Whitmore, 172 AD2d 600, 568 NYS2d 423 [2d Dept 1991]; O’Neill v Fishkill, 134 AD2d 487, 521 NYS2d 272 [2d Dept 1987]). Furthermore, the parties’ competing interest must be viewed "in a light most favorable to the party opposing the motion" (Marine Midland Bank, N.A. v Dino & Artie’s Automatic Transmission Co., 168 AD2d 610, 563 NYS2d 449 [2d Dept 1990]). However, mere conclusions and unsubstantiated allegations are insufficient to raise any triable issues of fact (see Zuckerman v City of New York, 49 NY2d 557, 427 NYS2d 595 [1980]; Perez v Grace Episcopal Church, 6 AD3d 596, 774 NYS2d 785 [2d Dept 2004]; Rebecchi v Whitmore, supra). For a defendant in a legal malpractice case to succeed on a motion for summary judgment, evidence must be presented in admissible form establishing that the plaintiff is unable to prove at least one of the essential elements of a malpractice cause of action (Napolitano v Markotsis & Lieberman, 50 AD3d 657. 855 NYS2d 593 [2d Dept 2008]; Olaiya v Golden, 45 AD3d 823, 846 NYS2d 604 [2d Dept 2007]; Caires v Sihen & Sihen, 2 AD3d 383, 767 NYS2d 785 [2d Dept 2003]; Ippolito v McCormack, Damiani, Lowe & Mellon, 265 AD2d 303, 696 NYS2d 203 [2d Deptl 999]). To establish a cause of action to recover damages 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 (Tortura v Sullivan Papain
Block McGrath & Cannavo, P.C., 21AD3d1082, 803 NYS2d 571 [2d Dept 2005]; Ippolito v McCormack, Damiani, Lowe & Mellon, supra; Iannarone v Gramer, 256 AD2d 443, 682 NYS2d 84
[2d Dept 1998]; Volpe v Canfield, 237 AD2d 282, 654 NYS2d 160 [2d Dept 1997], lv denied 90 NY2d
802, 660 NYS2d 712 [ 1997]). "

For Plaintiff:  The plaintiffs now cross-move for partial summary judgment as to the liability of Schwartzapfel and DeBlasio or, in the alternative, holding that said defendants violated a duty to the plaintiffs which resulted in their medical malpractice action being dismissed. As noted above, after the date of the making of this cross motion, the plaintiffs discontinued their action as to DeBlasio. Thus, the plaintiffs cross motion against DeBlasio is denied as academic. In support of their motion, the plaintiffs submit, among other things, the aforesaid affirmation of Gajek and affidavit of counsel for the plaintiffs, a copy of a letter to Schwartzapfel from the New York State Department of Health, and an affidavit from a physician licensed in New York. In order to establish a prima facie case of legal malpractice, a plaintiff must demonstrate that the breach of the attorney’s duty proximately caused the plaintiff actual and ascertainable damages (see Leder v Spiegel, 9 NY3d 836, 840 NYS2d 888 [2007]; Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 835 NYS2d 534 [2007]; McCoy v Fienman, 99 NY2d 295, 755 NYS2d 693 [2002]; Darby & Darby, P.C. v VSI Intl. Inc., 95 NY2d 308, 716 NYS2d 378 [2000]; Kluczka v Lecci, 63 AD3d 796, 880 NYS2d 698 [2d Dept 2007]). Moreover, the plaintiff is required to prove that, "but for" the attorney’s negligence, the plaintiff would have prevailed on the underlying cause of action (see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 834 NYS2d 705 [2007]; Leder v Spiegel, supra; Snolis v Clare, 81 AD3d 923, 917 NYS2d 299 [2d Dept 2011]; Weil, Gotshall & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 780 NYS2d 593 [1st Dept 2004]; Shopsin v Siben & Siben, 268 AD2d 578, 702 NYS2d 610 [2d Dept 2000]). Thus, the plaintiffs here are required to prove that they would have been successful in their medical malpractice action. "