Napolitano v. Markotsis Lieberman — Case Summary
Summary of the case Napolitano v. Markotsis & Lieberman
The plaintiff appealed a judgment from the Supreme Court, Nassau County, which dismissed a legal malpractice complaint against the defendants. The court affirmed the dismissal, stating that the plaintiff failed to establish that the defendants' alleged malpractice caused actual damages or that the plaintiff would have prevailed in the underlying action but for the malpractice. The defendants demonstrated that the plaintiff could not overcome the defense of 'unclean hands.'
Key Issues of the case Napolitano v. Markotsis & Lieberman
- Legal malpractice
- Doctrine of unclean hands
Key Facts of the case Napolitano v. Markotsis & Lieberman
- Plaintiff failed to prove damages caused by malpractice
- Defendants showed plaintiff could not overcome 'unclean hands' defense
Decision of the case Napolitano v. Markotsis & Lieberman
Judgment is affirmed, with costs.
Opinions
In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals from a judgment of the Supreme Court, Nassau County (Cozzens, Jr., J.), entered April 16, 2007, which, upon an order of the same court dated April 4, 2007, granting the defendants’ motion for summary judgment dismissing the complaint, dismissed the complaint. Ordered that the judgment is affirmed, with costs. In order to prevail in an action to recover damages for legal malpractice, a plaintiff must establish that the defendant attorney failed to exercise the level of skill and knowledge commonly possessed by a member of the legal profession, and that the failure proximately caused the plaintiff to sustain actual and ascertainable damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Olaiya v Golden, 45 AD3d 823 [2007]). To establish causation, the plaintiff must show that, but for the attorney’s negligence, he or she would have prevailed in the underlying action (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442; Carrasco v Pena & Kahn, 43 AD3d 395 [2008]).
On their motion for summary judgment, the defendants made a prima facie showing that the plaintiff would be unable to prove at trial that, but for their alleged malpractice, he would have overcome the affirmative defense of “unclean hands” and prevailed in the underlying action. In opposition, the plaintiff failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted the defendants’ motion for summary judgment dismissing the complaint (see Asher v Shlimbaum, 45 AD3d 791 [2007]). Fisher, J.E, Ritter, Dillon and McCarthy, JJ., concur.