Agate v Herrick, Feinstein LLP

Agate v Herrick, Feinstein LLP 2008 NY Slip Op 09911 [57 AD3d 341] December 18, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Monday, March 23, 2009

James Agate, Appellant,
v
Herrick, Feinstein LLP, Respondent, et al., Defendants.

—[*1] Mark E. Kressner, Bronx, for appellant.

Herrick, Feinstein LLP, New York (Susan T. Dwyer of counsel), for respondent.

Order, Supreme Court, New York County (Louis B. York, J.), entered September 11, 2006, which, in an action for legal malpractice arising out of defendants' joint representation of plaintiff and another client (Edward A. Kaminsky) in a dispute involving their purchase of securities that was resolved by arbitration, granted defendants' motion for summary judgment dismissing the amended complaint, unanimously affirmed, without costs.

We affirm for reasons stated in Kaminsky v Herrick, Feinstein LLP (59 AD3d 1 [2008] [decided herewith]), namely, the failure to demonstrate any legal basis upon which a trier of fact might find that the alleged omission of defendants to present further expert testimony concerning plaintiffs' damages would have resulted in a higher award by the arbitration panel. Thus, since plaintiff cannot establish that, but for the alleged negligence of his attorneys, the outcome of the underlying matter would have been substantially different (see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]; N.A. Kerson Co. v Shayne, Dachs, Weiss, Kolbrenner, Levy & Levine, 45 NY2d 730, 732 [1978]), his cause of action is deficient, and dismissal is required (Katash v Richard Kranis, P.C., 229 AD2d 305, 306 [1996], lv dismissed 89 NY2d 981 [1997]). Concur—Tom, J.P., Friedman, Buckley and Catterson, JJ. [See 2006 NY Slip Op 30127(U).]