Third-party defendant moves for an order, pursuant to CPLR 3211(a)(1) and (7), dismissing the amended third-party complaint.

Upon the foregoing papers it is hereby ORDERED that the motion is granted.

Pursuant to CPLR 3211(a), "[a] party may move for judgment dismissing one or more [*2]causes of action asserted against him on the ground that: ... 7. the pleading fails to state a cause of action." On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction. See CPLR 3026. "We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory. ... In assessing a motion under CPLR 3211(a)(7), ... the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one.'" Roth v Goldman, 254 AD2d 405, 406 (2nd Dept 1998) quoting Leon v Martinez, 84 NY2d 83, 87-88 (1994); see also Hartman v Morgenstern, 28 AD3d 423 (2nd Dept 2006).

The third-party action brought by Elide against Salerno alleges, in sum and substance, that Salerno's failure to advise his client Elide that the warrant of eviction was executed without seventy-two (72) hour notice in violation of RPAPL 749(2) constituted legal malpractice for which Elide seeks damages. Salerno, however, asserts that Elide cannot establish it has sustained damages, or that if it had, Elide cannot prove that Salerno's conduct caused those damages, and that in any event, Salerno cannot be held liable for an eviction based on a duly issued warrant.

The elements of a legal malpractice claim are (1) that the defendant failed to exercise that degree of care, skill, and diligence commonly possessed by an ordinary member of the legal community, (2) that such negligence was the proximate cause of the actual damages sustained by the plaintiff, and (3) that, but for the defendant's negligence, the plaintiff would have been successful in the underlying action. See Cummings v Donovan, 36 AD3d 648 (2nd Dept 2007).

Essential to a legal malpractice claim is proof that the alleged acts of an attorney proximately caused compensable damages. If there are no damages, there can be no cause of action. See Zletz v Outten and Golden LLP, 18 AD3d 322 (1st Dept 2005). Since the main action is still pending, Elide cannot claim damages, and thus, its assertion of legal malpractice in the third-party complaint cannot stand. See Kahn Jewelry Corp v Rosenfeld, 295 AD2d 261 (1st Dept 2002) (in view of the circumstances that the underlying action was still pending at the time of defendant's motion, plaintiffs have not yet sustained any actual damages attributable to the alleged malpractice). Mere speculation of loss resulting from alleged attorney negligence is insufficient to sustain a prima facie case of legal malpractice. See Luniewski v Zeitlin, 188 AD2d 642 (2nd Dept 1992).

Moreover, Elide could not have stopped the eviction even if Salerno had advised it that same was improper, because Elide had no authority over defendant constable Kenneth R. Herbert in light of the lawfully issued warrant. Moreover, Elide's representative at the eviction, defendant Michael M. Seminara, a constable himself, knew same was premature, but did nothing.

Finally, it is uncontroverted that Salerno, as the attorney who obtained the warrant, cannot be held liable by either plaintiff tenant or defendant constable, since the eviction itself was carried out pursuant to a duly issued order, and Salerno owed no duty to either. See Negron v 1175 Holding LLC, 2005 NY Slip Op 51671(U) (App Term 1st Dept) (absent tortious, malicious [*3]or fraudulent conduct, the law firm cannot be cast in damages for plaintiff's eviction, albeit wrongful, on a valid warrant); see also Chelsea Marina v Soralick, 94 AD2d 189 (2nd Dept 1983) (court dismissed claim against landlord's attorney for wrongful eviction indicating that landlord's attorney had no duty to notify sheriff).

Accordingly, the verified amended third-party complaint is dismissed in its entirety.

Settle judgment on ten (10) days notice within thirty (30) days hereof.

This matter is scheduled for a trial readiness conference on February 11, 2008 at 9:30 A.M. in courtroom 1203 at the Westchester County Courthouse, 111 Dr. Martin Luther King, Jr. Boulevard, White Plains, New York.

Dated: January 28, 2008

White Plains, New York

HON. ORAZIO R. BELLANTONI

Justice of the Supreme Court

Housman & Associates, P.C.

Attorneys for Third-Party Defendant

150 White Plains Road, Suite 310

Tarrytown, New York 10591

DelBello Donnellan Weingarten Wise & Wiederkehr, LLP

Attorneys for Defendant/Third-Party Plaintiff

One North Lexington Avenue

White Plains, New York 10601

Most & Kusnetz, LLC

Attorneys for Plaintiff

222 Bloomingdale Road, Suite 302

White Plains, New York 10605