When you tease out the underlying process of the summary judgment motion practice in Burbige v Siben & Ferber  2017 NY Slip Op 05704  Decided on July 19, 2017  Appellate Division, Second Department it becomes apparent that the Appellate Division saw less in the underlying motions than did Supreme Court.  Both, however, came to the same conclusion.  No one wins summary judgment.  Defendants did not even show prima facie entitlement to summary judgment, and the motion should have been denied outright.

“ORDERED that the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.

Multiple summary judgment motions in the same action should be discouraged in the absence of a showing of newly discovered evidence or other sufficient cause (see Valley Natl. Bank v INI Holding, LLC, 95 AD3d 1108). However, under the circumstances of this case, the Supreme Court improvidently exercised its discretion in denying the plaintiff’s cross motion for summary judgment as a successive motion, and declining to reach the merits on the issue of liability (see Town of Angelica v Smith, 89 AD3d 1547, 1549).”

“Here, contrary to the Supreme Court’s determination, the defendants failed to establish their prima facie entitlement to judgment as a matter of law dismissing the complaint. The defendants’ submissions in support of their motion for summary judgment did not establish, prima facie, that the plaintiff will be unable to prove at least one element of his legal malpractice claim (see Kempf v Magida, 116 AD3d 736, 736; Barnave v Davis, 108 AD3d 582; Alizio v Feldman, 82 AD3d 804). Furthermore, the defendants failed to establish, prima facie, that the plaintiff did not sustain “actual and ascertainable damages” as a result of the defendants’ alleged neglect of the underlying action (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442; see Suydam v O’Neill, 276 AD2d at 550).

In addition, the plaintiff’s opposition papers raised a triable issue of fact as to whether the defendants’ lengthy delay in prosecuting the underlying action was a proximate cause of the plaintiff’s loss (see Shopsin v Siben & Siben, 268 AD2d 578, 578-579). The plaintiff’s reliance upon the same evidence in support of that branch of his cross motion which was for summary judgment on the issue of liability was similarly insufficient to establish a prima facie case of legal malpractice (see Feldman v Finkelstein & Partners, LLP, 131 AD3d 505, 507). Accordingly, the Supreme Court properly denied the defendants’ motion for summary judgment dismissing the complaint and that branch of the plaintiff’s cross motion which was for summary judgment on the issue of liability.

Contrary to the plaintiff’s contention, he failed to establish that the conduct of the defendants’ counsel was frivolous. Accordingly, the Supreme Court providently exercised its discretion in denying that branch of his cross motion which was to impose sanctions upon the defendants’ counsel pursuant to 22 NYCRR 130-1.1.”