Marinelli Associates, Respondent, v. Edward A. Morrison, Appellant, et al., Defendants

Marinelli Associates, Respondent, v Edward A. Morrison, Appellant, et al., Defendants. [755 NYS2d 668] [MAJORITY] —In an action to recover damages for legal malpractice, the defendant Edward A. Morrison appeals from an order of the Supreme Court, Queens County (Polizzi, J.), dated April 25, 2002, which denied his motion for summary judgment dismissing the complaint. Ordered that the order is affirmed, with costs. “The proponent of a summary judgment motion must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853 [1985]; Drago v King, 283 AD2d 603 [2001] ). Here, contrary to the appellant’s contention, he failed to establish his prima facie showing of entitlement to judgment as a matter of law. The appellant’s submissions on his motion for summary judgment failed to disprove that but for his failure to timely interpose causes of action alleging fraud, breach of fiduciary duty and conversion, the plaintiff would have succeeded in its initial claims against the other members of the joint venture in question. Accordingly, the motion for summary judgment was properly denied. Smith, J.P., Goldstein, Townes and Mastro, JJ., concur.