Napoli v. Rubin

199 A.D.3d 819

154 N.Y.S.3d 262 (Mem)

Paul J. NAPOLI, respondent,

v.Denise A. RUBIN, appellant.

2018-03990

Index No. 604127/17

Supreme Court, Appellate Division, Second Department, New York.

Argued—October 5, 2021

November 10, 2021

Rubin Law, PLLC, New York, NY (Denise A. Rubin pro se of counsel), for appellant.

CHERYL E. CHAMBERS, J.P., SYLVIA O. HINDS–RADIX, BETSY BARROS, VALERIE BRATHWAITE NELSON, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for legal malpractice, the defendant appeals from an order of the Supreme Court, Suffolk County (Arthur G. Pitts, J.), dated February 1, 2018. The order, insofar as appealed from, in effect, denied that branch of the defendant's cross motion which was for summary judgment dismissing the complaint.

ORDERED that the order is affirmed insofar as appealed from, without costs or disbursements.

In March 2017, the plaintiff commenced this action to recover damages for legal malpractice, breach of fiduciary duty, and violation of Judiciary Law § 487. The plaintiff moved to dismiss the defendant's counterclaims, and the defendant cross-moved, inter alia, for summary judgment dismissing the complaint. The Supreme Court, inter alia, in effect, denied that branch of the defendant's cross motion which was for summary judgment dismissing the complaint. The defendant appeals.

On a motion for summary judgment, the moving party must "make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to demonstrate the absence of any material issues of fact" ( Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ). The failure to make such a showing requires a denial of the motion, regardless of the sufficiency of the opposing papers (see id. at 324, 508 N.Y.S.2d 923, 501 N.E.2d 572 ; Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d 851, 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).

Here, the defendant failed to establish her prima facie entitlement to judgment as a matter of law. Therefore, the Supreme Court properly denied that branch of her cross motion which was for summary judgment dismissing the complaint regardless of the sufficiency of the plaintiff's opposition papers (see Blumencranz v. Botter, 182 A.D.3d 568, 569, 120 N.Y.S.3d 829 ; see generally Winegrad v. New York Univ. Med. Ctr., 64 N.Y.2d at 853, 487 N.Y.S.2d 316, 476 N.E.2d 642 ).

We decline the defendant's request pursuant to 22 NYCRR 130–1.1 to impose sanctions based on the plaintiff's allegedly...