[*1]
Josilevich v Forde
2004 NY Slip Op 50434(U)
Decided on May 17, 2004
Appellate Term, First Department
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
This opinion is uncorrected and will not be published in the printed Official Reports.


Decided on May 17, 2004
APPELLATE TERM OF THE SUPREME COURT, FIRST DEPARTMENT

PRESENT:
HON. LUCINDO SUAREZ, P.J.
HON. WILLIAM P. McCOOE
HON. PHYLLIS GANGEL-JACOB, Justices.
570293/03 ——————————————————-x

ILIA JOSILEVICH, Plaintiff-Appellant, —

against

JAMES L. FORDE, ESQ., CHARLES KRUPIN and GANDIN SHOTSKY RAPPAPORT GLASS & GREEN, Defendant-Respondents, MARK FOX, Defendant. ——————————————————-x


Plaintiff appeals from an order of the Civil Court, New York County, entered August 6, 2002 (Karen S. Smith, J.) which granted defendant-respondents' motion to dismiss the complaint pursuant to CPLR 3211(a)(1) and (7).


PER CURIAM:

Order entered August 6, 2002 (Karen S. Smith, J.) affirmed, with $10 costs.

Plaintiff alleges that he would have succeeded in his prosecution of the underlying negligence action for personal injuries but for the defendants' legal malpractice. "While the complaint is replete with allegations describing defendants' negligence in the underlying action, it says nothing concerning the merits of plaintiff's [action]. That deficiency warrants dismissal of [*2]the complaint for failure to state a cause of action, there being no allegations that but for the alleged malpractice plaintiff[ ] would have prevailed in the underlying action" (Sonnenschine v Giacomo, 295 AD2d 287 [2002]). Plaintiff's breach of contract cause of action, alleging the same operative facts as the cause of action for legal malpractice, was also properly dismissed for [*3]
failure to state a cause of action (id.).

This constitutes the decision and order of the court.