Davis v. Klein , 88 N.Y.2d 1008 ( 1996 )

88 N.Y.2d 1008 (1996) 671 N.E.2d 1268 648 N.Y.S.2d 871

Robert L. Davis et al., Appellants,
v.
Naomi Klein, as Executrix of The Estate of Lawrence A. Klein, Deceased, et al., Respondents.

Court of Appeals of the State of New York.

Decided September 17, 1996.

Lipsitz, Green, Fahringer, Roll, Salisbury & Cambria, Buffalo (John A. Collins of counsel), for appellants.

D'Amato & Lynch, New York City (Stephen F. Willig of counsel), for respondents.

Chief Judge KAYE and Judges SIMONS, TITONE, BELLACOSA, SMITH, LEVINE and CIPARICK concur.

MEMORANDUM.

The order of the Appellate Division should be affirmed, with costs.

Plaintiff Robert Davis retained the defendant law firm in March 1987 to represent and appear for him in all proceedings concerning a workers' compensation claim arising out of an accident which occurred on property allegedly owned by the City of New York. In 1988, plaintiff's case was allegedly referred by the defendant attorney to another lawyer in the same firm for discussion on commencing a third-party action against the City. Plaintiff was informed at that time that his claim against the City was barred by the Statute of Limitations.

Plaintiff's workers' compensation claim was resolved and no further action with respect to the claim against the City was taken until 1991, when plaintiff and his spouse commenced this legal malpractice action. Plaintiffs alleged that defendants committed malpractice by failing to timely institute an action against the City as owner of the property where the accident occurred pursuant to Labor Law §§ 200, 240, 241 (6) and common-law negligence principles. Defendants moved for summary judgment. Supreme Court granted defendants' motion and dismissed the complaint. The Appellate Division, with one Justice dissenting, affirmed.

In order to establish a prima facie case of legal malpractice, a plaintiff must demonstrate that the plaintiff would have succeeded on the merits of the underlying action but for the attorney's negligence (see, Carmel v Lunney, 70 N.Y.2d 169, 173; Servidone Constr. Corp. v Security Ins. Co., 64 N.Y.2d 419, 425; Kerson Co. v Shayne, Dachs, Weiss, Kolbrenner, Levy & Levine, 59 AD2d 551, 553, affd 45 N.Y.2d 730, 732). Plaintiffs' unsupported allegations that the City owned the property in question failed to raise material issues of fact with respect to their underlying claims against the City, and the complaint was properly dismissed.

On review of submissions pursuant to section 500.4 of the Rules of the Court of Appeals (22 NYCRR 500.4), order affirmed, with costs, in a memorandum.