SUPREME COURT OF THE STATE OF NEW YORK

Appellate Division, Fourth Judicial Department

478 

CA 14-02011 

PRESENT: SMITH, J.P., CARNI, LINDLEY, SCONIERS, AND DEJOSEPH, JJ. 

 

SCOTT M. HARVEY, PLAINTIFF-APPELLANT, 

V MEMORANDUM AND ORDER

HANDELMAN, WITKOWICZ AND LEVITSKY, LLP, 

STEVEN M. WITKOWICZ AND STEVEN B. LEVITSKY, 

DEFENDANTS-RESPONDENTS.

 

DIFILIPPO, FLAHERTY & STEINHAUS, PLLC, EAST AURORA (ROBERT D.

STEINHAUS OF COUNSEL), FOR PLAINTIFF-APPELLANT. 

DUGGAN & PAWLOWSKI LLP, BUFFALO (JAMES J. DUGGAN OF COUNSEL), FOR

DEFENDANTS-RESPONDENTS. 

 

Appeal from an order of the Supreme Court, Monroe County (Ann

Marie Taddeo, J.), entered March 18, 2014. The order granted the

motion of defendants for summary judgment and dismissed the complaint. 

It is hereby ORDERED that the order so appealed from is

unanimously modified on the law by denying the motion in part and

reinstating the complaint to the extent it seeks damages with respect

to defendants’ representation of plaintiff in the underlying personal

injury action against the County of Orleans and Nicole M. Gaulin in

her individual capacity and official capacity as an employee of the

County of Orleans, and as modified the order is affirmed without

costs. 

Memorandum: Plaintiff commenced this legal malpractice action

seeking damages for the alleged negligence of defendants in their

representation of him in a personal injury action arising from a motor

vehicle accident that occurred on March 27, 2007. In September 2007,

defendants commenced the underlying personal injury action on

plaintiff’s behalf against Nicole Gaulin, the owner and driver of the

other vehicle involved in the accident. Subsequently, defendants, on

plaintiff’s behalf, moved for permission to file a late notice of

claim on Gaulin’s employer, the County of Orleans (County), and on the

Kendall Central School District (District), the district to which

Gaulin was providing services on behalf of the County. That motion

was granted by Supreme Court, and the County and the District

appealed. We modified the order by affirming that part of the order

granting leave to file a notice of claim and by deleting that part of

the order which added the County and the District as defendants to the

action (Harvey v Gaulin [appeal No. 2], 68 AD3d 1789).
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CA 14-02011 

During the pendency of the prior appeal, a notice of claim was

served on the County and the District, and an examination pursuant to

General Municipal Law § 50-h was conducted. The amended complaint

adding the County and the District as defendants was filed on March 4,

2010. 

By order dated March 21, 2011, the court granted the motions of

the County and the District to dismiss the amended complaint against

them as time-barred. No appeal was taken from the March 21, 2011

order. On April 17, 2011, plaintiff filed a consent to change of

attorney and defendants’ representation of plaintiff ceased.

By order dated November 7, 2011, the court granted the motion of

Gaulin’s estate, substituted pursuant to CPLR 1015, for summary

judgment dismissing the amended complaint against it for, inter alia,

failure to serve Gaulin with a notice of claim. No appeal was taken

from that order.

Plaintiff then commenced this legal malpractice action alleging,

inter alia, that defendants were negligent in failing to timely

commence an action against the County and the District and in failing

to serve Gaulin with a notice of claim. Plaintiff’s complaint also

stated causes of action for fraud, breach of contract, and violation

of Judiciary Law § 487. The court subsequently granted defendants’

motion for summary judgment dismissing the complaint in this action in

its entirety on the basis that any negligence on defendants’ part was

not the proximate cause of plaintiff’s injury. 

We note at this juncture that plaintiff has abandoned any issues

related to the District (see Ciesinski v Town of Aurora, 202 AD2d 984,

984). To establish a cause of action for legal malpractice, “a

plaintiff must prove (1) that the defendant attorney failed to

exercise that degree of care, skill, and diligence commonly possessed

by a member of the legal community, (2) proximate cause, (3) damages,

and (4) that the plaintiff would have been successful in the

underlying action had the attorney exercised due care” (Phillips v

Moran & Kufta, P.C., 53 AD3d 1044, 1044-1045 [internal quotation marks

omitted]; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d

438, 442). “In order to prevail on a motion for summary judgment

seeking dismissal of a complaint for legal malpractice, a defendant

must establish that the plaintiff is unable to prove at least one

necessary element of the legal malpractice action, i.e., that the

plaintiff is unable to prove that he or she would have been successful

on the underlying claim but for [the defendant’s] negligence”

(Giardina v Lippes, 77 AD3d 1290, 1291 [internal quotation marks

omitted], lv denied 16 NY3d 702). Where a client fails to pursue an

appeal in an underlying action, in order to determine whether the

failure to pursue an appeal, as opposed to defendants’ negligence, was

the proximate cause of the client’s injury, we must determine whether

an appeal in the underlying action was “likely to succeed” (Grace v

Law, 24 NY3d 203, 210). 

Here, we conclude that defendants failed to meet their burden to

establish as a matter of law that any alleged negligence on their part
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CA 14-02011 

resulting in the March 21, 2011 order dismissing of the amended

complaint against the County was not a proximate cause of plaintiff’s

damages (see Grace v Law, 108 AD3d 1173, 1176, affd 24 NY3d 203). 

Thus, the court erred in granting the motion with respect to

plaintiff’s causes of action arising out of defendants’ handling of

the underlying personal injury action against the County. In support

of their motion for summary judgment, defendants’ own submissions

established that the action against the County was commenced 51 days

after the expiration of the limitations period. While the statute of

limitations set forth in General Municipal Law § 50-i was tolled from

the time plaintiff commenced the proceeding to obtain leave to file a

late notice of claim until the order granting that relief went into

effect (see Giblin v Nassau County Med. Ctr., 61 NY2d 67, 74), the

order granting such leave was effective when entered (see Toro v City

of New York, 271 AD2d 523, 523-524, lv denied 96 NY2d 705), and the

appeal from that order provided no further toll (see Dublanica v Rome

Hosp./Murphy Mem. Hosp., 126 AD2d 977, 977, lv denied 70 NY2d 605). 

Thus, the limitations period expired on December 10, 2008, and the

amended complaint adding the County was not timely when filed on March

4, 2010 (see generally Ambrus v City of New York, 87 AD3d 341, 345). 

We therefore further conclude that an appeal from the order dismissing

the action against the County on limitations grounds had no likelihood

of success. 

Plaintiff also contends that the court erroneously granted

summary judgment to defendants because an appeal from the November 7,

2011 order granting Gaulin’s estate summary judgment based upon a

failure to serve Gaulin with a notice of claim was not likely to

succeed. We agree. The court dismissed the action against Gaulin’s

estate on the ground that Gaulin was not served with a notice of claim

in her official capacity as a County employee. However, defendants

did not oppose the motion of Gaulin’s estate on that ground. Thus,

defendants failed to preserve for our review the issue for any

possible appeal by plaintiff and/or his substitute counsel (see

Antokol & Coffin v Myers, 30 AD3d 843, 845; Crawford v Windmere Corp.,

262 AD2d 268, 269). We therefore conclude that any appeal of the

dismissal on this issue was not likely to succeed, and “defendants

failed to establish as a matter of law that any negligence on their

part was not a proximate cause of plaintiff’s damages” (Grace, 108

AD3d at 1176). We further note that, in moving for summary judgment,

defendants did not raise the issue whether an appeal from the

dismissal of the amended complaint against Gaulin in her individual

capacity would have been “likely to succeed.” Nonetheless, the court

dismissed the complaint in its entirety. That too was error (see

generally Kuhl v Piatelli, 31 AD3d 1038, 1039; Clarke v Davis, 277

AD2d 902, 902). We therefore modify the order by denying the motion

insofar as it sought dismissal of plaintiff’s claims regarding

defendants’ representation of plaintiff in the underlying personal

injury action against the County and Gaulin, in both her official and

individual capacities, and we reinstate the complaint to that extent.

Plaintiff’s remaining contentions have been rendered academic by 
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CA 14-02011 

our determination.

Entered: July 2, 2015 Frances E. Cafarell

Clerk of the Court