Abraham v Viruet

[*1] Abraham v Viruet 2015 NY Slip Op 50005(U) Decided on January 6, 2015 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on January 6, 2015
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Hunter, Jr., J.P., Shulman, Ling-Cohan, JJ.
570003/15

Connie Abraham, Plaintiff-Appellant,

against

Samuel Viruet, Defendant-Respondent.

Plaintiff, as limited by her brief, appeals from that portion of a judgment of the Civil Court of the City of New York, Bronx County (Eddie J. McShan, J.), entered April 4, 2014, after a nonjury trial, which dismissed the main action.

Per Curiam.

Judgment (Eddie J. McShan, J.), entered April 4, 2014, insofar as appealed from, affirmed, without costs, for the reasons stated by Eddie J. McShan, J. at Civil Court.

Giving due deference to the trial court's findings of fact and credibility, we sustain the judgment awarded in favor of defendant dismissing plaintiff's action insofar as it sounds in legal malpractice. Plaintiff's trial showing, unaccompanied by any expert opinion testimony, failed to establish that the defendant-attorney's representation of plaintiff in the two underlying matters "fell below the ordinary and reasonable skill and knowledge commonly possessed by a member of the [legal] profession" (see Fidler v Sullivan, 93 AD2d 964 [1983]). Moreover, in view of the continued pendency of one of the underlying actions, plaintiff did not and cannot establish any actual damages attributable to the malpractice alleged in connection with that matter (see Kahn Jewelry Corp v Rosenfeld, 295 AD2d 261 [2002]).

Plaintiff's claim, to the extent based in contract, was legally redundant of the inadequate legal malpractice claim (see Sonnenschine v Giacomo, 295 AD2d 287 [2002]), and was properly dismissed in view of plaintiff's failure to establish that defendant breached a promise to achieve a specific result (see Sage Realty Corp. v Proskauer Rose LLP, 251 AD2d 35, 38-39 [1998]).

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concur I concur I concur
Decision Date: January 06, 2015