Soubbotin v. Joseph Potashnik & Associates, PLLC , 28 N.Y.S.3d 334 ( 2016 )

Soubbotin v Joseph Potashnik & Assoc., PLLC (2016 NY Slip Op 02800)

Soubbotin v Joseph Potashnik & Assoc., PLLC

2016 NY Slip Op 02800

Decided on April 13, 2016

Appellate Division, Second Department

Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 13, 2016 SUPREME COURT OF THE STATE OF NEW YORK Appellate Division, Second Judicial Department
REINALDO E. RIVERA, J.P.
MARK C. DILLON
CHERYL E. CHAMBERS
THOMAS A. DICKERSON, JJ.

2015-04435
(Index No. 15541/13)

[*1]Tatiana Soubbotin, et al., respondents,

v

Joseph Potashnik and Associates, PLLC, et al., appellants.

Nathaniel B. Smith, New York, NY, for appellants.

Erlitz and Erlitz, LLP, East Rockaway, NY (Michael R. Freeda of counsel), for respondents.

DECISION & ORDER

In an action, inter alia, to recover damages for legal malpractice, the defendants appeal from an order of the Supreme Court, Kings County (F. Rivera, J.), dated April 2, 2015, which denied their motion for summary judgment dismissing the complaint.

ORDERED that the order is affirmed, with costs.

The plaintiffs commenced this action alleging that the defendants committed legal malpractice by failing to timely request a hearing before an Administrative Law Judge to review certain determinations of the New York State Department of Labor regarding overpayment of unemployment insurance benefits.

The Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint. Contrary to the defendants' contention, they failed to demonstrate, prima facie, that the acts that they allegedly failed to perform were beyond the scope of the subject retainer agreement (cf. AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 435; DeNatale v Santangelo, 65 AD3d 1006, 1007; Turner v Irving Finkelstein & Meirowitz, 61 AD3d 849, 850). Accordingly, the defendants failed to make a prima facie showing of entitlement to judgment as a matter of law. Thus, the motion was properly denied, regardless of the sufficiency of the opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

The defendants' remaining contentions either are not properly before this Court or need not be reached in light of our determination.

RIVERA, J.P., DILLON, CHAMBERS and DICKERSON, JJ., concur.

ENTER:

Aprilanne Agostino

Clerk of the Court