MUELLER v. FRUCHTER

Ordered that the order is affirmed insofar as appealed from, with costs.

"In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney `failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession' and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages" ( Rudolf v Shayne, Dacks, Stanisci, Corker Sauer, 8 NY3d 438, 442, quoting McCoy v Feinman, 99 NY2d 295, 301). "To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer's negligence" ( Rudolf v Shayne, Dachs, Stanisci, Corker Sauer, 8 NY3d at 442). "For a defendant in a legal malpractice action to succeed on a motion for summary judgment, evidence must be submitted in admissible form establishing that the plaintiff is unable to prove at least one of these essential elements" ( Shopsin v Siben Siben, 268 AD2d 578, 578; see Eisenberger v Septimus, 44 AD3d 994).

Here, the Supreme Court properly denied that branch of the defendants' motion which was for summary judgment dismissing the plaintiffs first cause of action ( see Rosenstrauss v Jacobs Jacobs, 56 AD3d 453, 454; Velie v Ellis Law, P.C., 48 AD3d 674, 675; Pedro v Walker, 46 AD3d 789, 790). The defendants failed to make a prima facie showing of their entitlement to judgment as a matter of law since they failed to show that the plaintiff was unable to prove at least one of the essential elements of her legal malpractice cause of action ( see Rosenstrauss v Jacobs Jacobs, 56 AD3d at 454; Velie v Ellis Law, P.C., 48 AD3d at 675; Pedro v Walker, 46 AD3d at 790). Thus, we need not address the sufficiency of the opposing papers ( see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).