Justice Thomas Feinman
Kemp moved for partial summary judgment in this action sounding in legal malpractice to limit the trial to the underlying case of Kemp v. County of Suffolk County Police Department. Kemp argued defendants, including law firm Frommer & Cerrato LLPs failure to re-start the General Municipal Law §50-h hearing after learning of his acquittal constituted legal malpractice. Kemp claimed the doctrine of res judicata collaterally estopped attorney Cerrato from stating the error was anything but his own. He cited the Appellate Division’s decision affirming a lower court’s ruling that granted defendants’ summary judgment motion dismissing Kemp’s complaint for his failure to comply with §50-h. The court stated, however, that Kemp’s attempt to show liability only, and bifurcate the issue of damages to trial was unavailing. It noted Kemp’s mere speculation about a loss resulting from an attorney’s alleged omission was insufficient to sustain a prima facie case of legal malpractice. The court noted Kemp’s motion was silent regarding the “but for” aspect of defendants’ alleged negligence, he would not have sustained any damages. As Kemp failed to make a prima facie showing of entitlement to summary judgment, his motion was denied.
