Michelle Ellsworth v James F. Foley

Ellsworth v Foley 2005 NY Slip Op 09871 [24 AD3d 1239] December 22, 2005 Appellate Division, Fourth Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, February 15, 2006

Michelle Ellsworth et al., Appellants, v James F. Foley et al., as Copartners and Individually, Doing Business as Foley and Foley, Respondents.

—[*1]Appeal from an order of the Supreme Court, Wayne County (Thomas M. Van Strydonck, J.), entered January 20, 2005 in a legal malpractice action. The order, inter alia, granted defendants' motion to dismiss the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously affirmed without costs.

Memorandum: Plaintiffs commenced this legal malpractice action alleging that defendants failed to preserve for appellate review the contention of plaintiffs that an "error in judgment" charge was erroneously given at the trial in their underlying medical malpractice action. This Court determined in the prior appeal from the judgment in the medical malpractice action that plaintiffs' general objection to the charge was insufficient to preserve for our review plaintiffs' contention that the charge was inapplicable (Ellsworth v Chan, 270 AD2d 811, 811-812 [2000], lv denied 95 NY2d 757 [2000]). We nevertheless conclude, however, that Supreme Court properly granted defendants' motion to dismiss the complaint herein because plaintiffs did not set forth the requisite factual allegations demonstrating that, but for defendants' alleged negligence, there would have been a more favorable outcome in the underlying action (see Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082 [2005]; Ferdinand v Crecca & Blair, 5 AD3d 538, 539-540 [2004], lv denied 3 NY3d 609 [2004]; Lavin & Kleiman v J.M. Heinike Assoc., Inc., 221 AD2d 919 [1995]). Present—Pigott, Jr., P.J., Green, Pine, Lawton and Hayes, JJ.