Appeal from an order of the Civil Court of the City of New York, Queens County (Thomas D. Raffaele, J.), entered November 23, 2006. The order denied defendants' motion for summary judgment dismissing the complaint.

Order reversed without costs and defendants' motion for summary judgment dismissing the complaint granted.

In this action to recover damages for legal malpractice, plaintiff contends that defendants failed to properly represent him before the New York State Workers' Compensation Board in defending a claim against him. In particular, plaintiff contends that defendants failed to cross-examine any of the parties or witnesses in the proceedings, failed to oppose or know about an appeal filed by plaintiff's carrier, which contested findings of a Workers' Compensation Law judge regarding improper cancellation of plaintiff's insurance policy, and permitted the proceedings to continue in the absence of a Hebrew interpreter. Defendants moved for summary judgment dismissing the complaint, and plaintiff opposed. The court below denied defendants' motion, and this appeal ensued.

In order to recover damages for legal malpractice, the former client must prove four essential elements: (1) that the attorney failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal profession; (2) that the attorney's conduct was the proximate cause of the loss sustained; (3) that the client sustained damages as a direct result of the attorney's actions; and (4) that the client would have been successful in the underlying action if the attorney had exercised due care (Town of N. Hempstead v Winston & Strawn, LLP, 28 AD3d 746, 748 [2006]; see also Olaiya v Golden, 45 AD3d 823 [2007]; Avery v Sirlin, 26 AD3d 451 [2006]). [*2]

To successfully move for summary judgment dismissing a complaint in an action to recover damages for legal malpractice, the defendant attorney must present admissible evidence that plaintiff cannot prove at least one of the aforementioned essential elements (see Fasanella v Levy, 27 AD3d 616 [2006]; Caires v Siben & Siben,
LLP, 2 AD3d 383 [2003]; Ippolito v McCormack, Damiani, Lowe & Mellon, 265 AD2d 303 [1999]).

In the instant case, defendants met their burden of establishing their entitlement to summary judgment as a matter of law by demonstrating that plaintiff would be unable to prove that, but for any negligence on their part, he would have prevailed in the underlying Workers' Compensation proceedings. Plaintiff, in opposition, failed to raise a triable issue of fact. Plaintiff's conclusory allegations based upon speculation were not sufficient to defeat defendants' motion.

Accordingly, the order of the court below is reversed and the motion for summary judgment dismissing the action is granted.

Pesce, P.J., Weston Patterson and Rios, JJ., concur.
Decision Date: March 18, 2008