in Frederick v Meighan ;2010 NY Slip Op 06076 ;Appellate Division, Second Department we see the effect of Attorney 2 failing to clean up Attorney 1’s mistakes. In addition we see an instance of what we believe to be a systemic aversion to legal malpractice cases. Here, for example, Supreme Court sua sponte grants dismissal to Attorney 1 in this legal malpractice case; the Appellate Division not only reinstates the case, it grants summary judgment to plaintiff. But, on to the substance.
 

"At the outset, we find that the Supreme Court improvidently exercised its discretion in, sua sponte, directing dismissal of the complaint insofar as asserted against the Meighan defendants pursuant to CPLR 3211(a)(4) in view of the continued pendency of the first legal malpractice action against those defendants, which relief was not requested by any party in this action (see Clair v Fitzgerald, 63 AD3d 979, 980; Frankel v Stavsky, 40 AD3d 918, 919).

"We further find that the Supreme Court should have granted that branch of the plaintiff’s motion which was for summary judgment on the issue of liability against the Meighan defendants. In order to prevail in an action to recover damages for legal malpractice, a plaintiff must establish that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the breach of this duty proximately caused the plaintiff to sustain actual and ascertainable damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442). Here, in opposition to the plaintiff’s prima facie showing of entitlement to judgment as a matter of law, the Meighan defendants failed to demonstrate the existence of any triable issues of fact with respect to their liability for legal malpractice (see Alvarez v Prospect Hosp., 68 NY2d 320, 324; Northrop v Thorsen, 46 AD3d 780, 784; Jampolskaya v Victor Gomelsky, P.C., 36 AD3d 761, 762). Contrary to the Meighan defendants’ contention, inasmuch as the plaintiff did not sustain "actionable injury" until this Court awarded the buyers specific performance in the underlying action, the plaintiff’s legal malpractice cause of action against them was not time-barred (McCoy v Feinman, 99 NY2d 295, 301; see Kerbein v Hutchison, 30 AD3d 730, 732). Also contrary to the Meighan defendants’ contention, their malpractice was a proximate cause of the injury in this case. If the DeCaro defendants are found to have also committed malpractice, the Meighan defendants and the DeCaro defendants may both be liable as successive tortfeasors who each contributed to the same injury (see Schauer v Joyce, 54 NY2d 1, 6; Soussis v Lazer, Aptheker, Rosella & Yedid, P.C., 66 AD3d 993, 994-995; Khlevner v Tylo, 16 Misc 3d 1129[A]).

The Supreme Court should have denied those branches of the DeCaro defendants’ cross motion which were for summary judgment dismissing so much of the complaint as alleged that they committed legal malpractice by failing to interpose a claim in the underlying action for rescission of the construction agreement based on mistake, by failing to interpose an affirmative defense in the underlying action of rescission based on mistake, and by arguing on appeal in the underlying action that the plaintiff instructed the Meighan defendants to send the construction agreement to the attorneys for the other parties to that agreement, which argument was contrary to the plaintiff’s testimony at the underlying trial. While the DeCaro defendants contend that a rescission defense based on unilateral mistake would not have been successful in the underlying action for specific performance, specific performance may be denied based on unilateral mistake [*4]where the other party must have been aware of the mistake (see Da Silva v Musso, 53 NY2d 543, 548; Sheridan Drive-In v State of New York, 16 AD2d 400, 405; Harper, Inc. v City of Newburgh, 159 App Div 695, 696-697). However, the Supreme Court should have granted that branch of the DeCaro defendants’ cross motion which was for summary judgment dismissing so much of the complaint as alleged that they committed legal malpractice by failing to advise the plaintiff of a potential legal malpractice claim against the Meighan defendants. As discussed above, the plaintiff lacked a viable legal malpractice claim against the Meighan defendants until this Court awarded the buyers specific performance."