Giardina v. Lippes, 77 A.D.3d 1290 (N.Y. App. Div. 2010). · Go Syfert
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Giardina v. Lippes, 77 A.D.3d 1290 (N.Y. App. Div. 2010). Cases Citing This Book View Copy Cite
22 citation events (22 in the last 25 years) across 2 distinct courts.
Strongest positive: Turner v. Voros (nyappdiv, 2026-02-11)
Treatment trajectory · 2011 → 2026 · click a year to view as-of
2011 2018 2026
Top citers, strongest first. 19 distinct citers. How cited ↗
discussed Cited as authority (rule) Turner v. Voros
N.Y. App. Div. · 2026 · confidence medium
Plaintiff's expert affirmation made only conclusory and speculative assertions with respect to the conclusion that a dangerous condition existed and "failed to recite the manner in which the [expert] came to [that] conclusion[ ]" ( Ciccarelli v Cotira , Inc. , 24 AD3d 1276, 1277 [4th Dept 2005] [internal quotation marks omitted]; see Griffith v ETH NEP , L.P. , 140 AD3d 451, 452 [1st Dept 2016], lv denied 28 NY3d 905 [2016]), and plaintiff's expert affirmation similarly made only conclusory and speculative assertions with respect to causation ( see Conners , 189 AD3d at 2073 ; Giardina v Lippe…
discussed Cited as authority (rule) Magic Circle Films Intl., LLC v. Breon
N.Y. App. Div. · 2021 · confidence medium
Generally, "successive summary judgment motions . . . are disfavored absent newly discovered evidence or other sufficient cause" ( Giardina v Lippes , 77 AD3d 1290, 1291 [4th Dept 2010], lv denied 16 NY3d 702 [2011]; see Farm Family Cas.
discussed Cited as authority (rule) Nationwide Affinity Ins. Co. of Am. v. Jamaica Wellness Med., P.C.
N.Y. App. Div. · 2020 · confidence medium
"Although successive summary judgment motions generally are disfavored absent newly discovered evidence or other sufficient cause . . . , neither Supreme Court nor this Court is precluded from addressing the merits of such a motion" ( Giardina v Lippes , 77 AD3d 1290, 1291 [4th Dept 2010], lv denied 16 NY3d 702 [2011]; see Putrelo Constr.
discussed Cited as authority (rule) Murray v. Lipman
N.Y. App. Div. · 2018 · confidence medium
In order to establish their entitlement to judgment as a matter of law, defendants had to present evidence in admissible form establishing that plaintiff is "unable to prove at least one necessary element of the legal malpractice action" ( Giardina v Lippes , 77 AD3d 1290, 1291 [4th Dept 2010], lv denied 16 NY3d 702 [2011]), e.g., " that the defendant attorney failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community' " ( Phillips v Moran & Kufta, P.C. , 53 AD3d 1044, 1044-1045 [4th Dept 2008]).
discussed Cited as authority (rule) Riverstone Associates, LP v. Campbell
N.Y. City Civ. Ct. · 2016 · confidence medium
“Although landlord previously moved for summary judgment . . . and successive summary judgment motions are generally disfavored (see Jones v 636 Holding Corp., 73 AD3d 409 [1st Dept 2010]), the court was not precluded from addressing the merits of the underlying motion (see Giardina v Lippes, 77 AD3d 1290, 1291 [4th Dept 2010], lv denied 16 NY3d 702 [2011]).” Rand v Bedford Hotel, Inc., 47 Misc 3d 146(A) , 2015 NY Slip Op 50725(U) , *1 (App Term, 1st Dept 2015). .
discussed Cited as authority (rule) HARVEY, SCOTT M. v. HANDELMAN, WITKOWICZ AND LEVITSKY
N.Y. App. Div. · 2015 · confidence medium
“In order to prevail on a motion for summary judgment seeking dismissal of a complaint for legal malpractice, a defendant must establish that the plaintiff is unable to prove at least one necessary element of the legal malpractice action, i.e., that the plaintiff is unable to prove that he or she would have been successful on the underlying claim but for [the defendant’s] negligence” (Giardina v Lippes, 77 AD3d 1290, 1291 [internal quotation marks omitted], lv denied 16 NY3d 702 ).
discussed Cited as authority (rule) Harvey v. Handelman, Witkowicz & Levitsky, LLP
N.Y. App. Div. · 2015 · confidence medium
“In order to prevail on a motion for summary judgment seeking dismissal of a complaint for legal malpractice, a defendant must establish that the plaintiff is unable to prove at least one necessary element of the legal malpractice action, i.e., that the plaintiff is unable to prove that he or she would have been successful on the underlying claim but for [the defendant’s] negligence” (Giardina v. Lippes, 77 AD3d 1290, 1291 [2010] [internal quotation marks omitted], l v denied 16 NY3d 702 [2011]).
discussed Cited as authority (rule) Harvey v. Handelman, Witkowicz & Levitsky, LLP
N.Y. App. Div. · 2015 · confidence medium
“In order to prevail on a motion for summary judgment seeking dismissal of a complaint for legal malpractice, a defendant must establish that the plaintiff is unable to prove at least one necessary element of the legal malpractice action, i.e., that the plaintiff is unable to prove that he or she would have been successful on the underlying claim but for [the defendant’s] negligence” (Giardina v. Lippes, 77 AD3d 1290, 1291 [2010] [internal quotation marks omitted], l v denied 16 NY3d 702 [2011]).
discussed Cited as authority (rule) Green Harbour Homeowners Ass'n v. Ermiger
N.Y. App. Div. · 2015 · confidence medium
“While it is true that multiple motions for summary judgment in the same action generally are looked upon with disfavor, more than one motion is permissible where the subsequent motion is based upon newly discovered evidence or the moving party can demonstrate other sufficient cause for granting the motion” (Inter-Power of N.Y. v Niagara Mohawk Power Corp., 259 AD2d 932, 933 [1999], lv denied 93 NY2d 812 [1999] [citation omitted]; see Foster v Kelly, 119 AD3d 1250, 1251 [2014]; Giardina v Lippes, 77 AD3d 1290, 1291 [2010], lv denied 16 NY3d 702 [2011]; Tuttle v McQuesten Co., 243 AD2d 930,…
discussed Cited as authority (rule) Green Harbour Homeowners Ass'n v. Ermiger
N.Y. App. Div. · 2015 · confidence medium
“While it is true that multiple motions for summary judgment in the same action generally are looked upon with disfavor, more than one motion is permissible where the subsequent motion is based upon newly discovered evidence or the moving party can demonstrate other sufficient cause for granting the motion” (Inter-Power of N.Y. v Niagara Mohawk Power Corp., 259 AD2d 932, 933 [1999], lv denied 93 NY2d 812 [1999] [citation omitted]; see Foster v Kelly, 119 AD3d 1250, 1251 [2014]; Giardina v Lippes, 77 AD3d 1290, 1291 [2010], lv denied 16 NY3d 702 [2011]; Tuttle v McQuesten Co., 243 AD2d 930,…
discussed Cited as authority (rule) FLOYD, R.L. v. NEW YORK STATE THRUWAY AUTHORITY
N.Y. App. Div. · 2015 · confidence medium
Likewise, although defendant previously had cross-moved for summary judgment and “successive summary judgment motions generally are disfavored” (Giardina v Lippes, 77 AD3d 1290, 1291 [2010], lv denied 16 NY3d 702 [2011]), we are not precluded from addressing defendant’s present motion, particularly in view of the fact that it was made after further discovery (see id.).
discussed Cited as authority (rule) SEUBERT, ADELE v. MARCHIONI, JOHN D.
N.Y. App. Div. · 2013 · confidence medium
In order to establish their entitlement to judgment as a matter of law, defendants had to present evidence in admissible form establishing that plaintiffs are “unable to prove at least one necessary element of the legal malpractice action” (Giardina v Lippes, 77 AD3d 1290, 1291 [2010], lv denied 16 NY3d 702 [2011]; see Ginther v Rosenhoch, 57 AD3d 1414, 1414-1415 [2008], lv denied 12 NY3d 707 [2009]), e.g., “ ‘that the defendant attorney failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community’ ” (Phillips v Moran & Kufta, P…
discussed Cited as authority (rule) Farm Family Casualty Insurance v. Brady Farms, Inc.
N.Y. App. Div. · 2011 · confidence medium
Although it is well settled that “successive motions for summary judgment are generally disfavored” (Rupert v Gates & Adams, P.C., 83 AD3d 1393, 1395 [2011]), such motions for summary judgment are permitted where there is “newly discovered evidence or other sufficient cause” (Giardina v Lippes, 77 AD3d 1290, 1291 [2010], lv denied 16 NY3d 702 [2011]).
discussed Cited as authority (rule) RUPERT, JR., PHILIP D. v. GATES & ADAMS, P.C.
N.Y. App. Div. · 2011 · confidence medium
Although plaintiff is correct that successive motions for summary judgment are generally disfavored (see Giardina v Lippes, 77 AD3d 1290, 1291 [2010], lv denied 16 NY3d 702 [2011]), here much of the discovery relevant to the instant motion was conducted after defendants’ prior cross motion for summary judgment, and there was thus a sufficient basis for the instant motion (see id.; Taillie v Rochester Gas & Elec.
discussed Cited "see" Foster v. Kelly
N.Y. App. Div. · 2014 · signal: see · confidence high
Auth., 105 AD2d 517, 518 [1984]; accord Keating v Town of Burke, 105 AD3d 1127, 1128 [2013]), where, as here, evidence produced from additional discovery places the motion court “in a far better position to determine” a legally dispositive issue, the court should not be precluded from exercising its discretion to consider the merits of a subsequent motion (Kobre v United Jewish Appeal-Fedn. of Jewish Philanthropies of N.Y., Inc., 32 AD3d 218, 222 [2006], lv denied 7 NY3d 715 [2006]; see Giardina v Lippes, 77 AD3d 1290, 1291 [2010], lv denied 16 NY3d 702 [2011]; Wenger v Goodell, 288 AD2d 8…
discussed Cited "see" FostervKelly
N.Y. App. Div. · 2014 · signal: see · confidence high
Auth., 105 AD2d 517, 518 [1984]; accord Keating v Town of Burke, 105 AD3d 1127, 1128 [2013]), where, as here, evidence produced from additional discovery places the motion court "in a far better position to determine" a legally dispositive issue, the court should not be precluded from exercising its discretion to consider the merits of a subsequent motion (Kobre v United Jewish Appeal-Fedn. of Jewish Philanthropies of N.Y., Inc., 32 AD3d 218, 221 [2006], lv denied 7 NY3d 715 [2006]; see Giardina v Lippes, 77 AD3d 1290, 1291 [2010], lv denied 16 NY3d 702 [2011]; Wenger v Goodell, 288 AD2d 815, …
discussed Cited "see" Foster v. Kelly
N.Y. App. Div. · 2014 · signal: see · confidence high
Auth., 105 AD2d 517, 518 [1984]; accord Keating v Town of Burke, 105 AD3d 1127, 1128 [2013]), where, as here, evidence produced from additional discovery places the motion court “in a far better position to determine” a legally dispositive issue, the court should not be precluded from exercising its discretion to consider the merits of a subsequent motion (Kobre v United Jewish Appeal-Fedn. of Jewish Philanthropies of N.Y., Inc., 32 AD3d 218, 222 [2006], lv denied 7 NY3d 715 [2006]; see Giardina v Lippes, 77 AD3d 1290, 1291 [2010], lv denied 16 NY3d 702 [2011]; Wenger v Goodell, 288 AD2d 8…
discussed Cited "see" Town of Angelica v. Smith
N.Y. App. Div. · 2011 · signal: see · confidence high
“In any event, ‘[a]s an appellate court, we are not precluded from addressing the merits of the [cross] motion’ ” (Sexstone v Amato, 8 AD3d 1116, 1117 [2004], lv denied 3 NY3d 609 [2004]; see Giardina v Lippes, 77 AD3d 1290, 1291 [2010], lv denied 16 NY3d 702 [2011]).
discussed Cited "see" TOWN OF ANGELICA v. SMITH, JOEL S.
N.Y. App. Div. · 2011 · signal: see · confidence high
“In any event, ‘[a]s an appellate court, we are not precluded from addressing the merits of the [cross] motion’ ” (Sexstone v Amato, 8 AD3d 1116, 1117 , lv denied 3 NY3d 609 ; see Giardina v Lippes, 77 AD3d 1290, 1291 , lv denied 16 NY3d 702 ).
Retrieving the full opinion text from the archive…
Sharon J. Giardina
v.
Richard J. Lippes, Doing Business as Allen, Lippes & Shonn
Appellate Division of the Supreme Court of the State of New York.
Oct 1, 2010.
77 A.D.3d 1290
Cited by 20 opinions  |  Published

Appeal from an order of the Supreme Court, Erie County (Kevin M. Dillon, J.), entered August 4, 2009 in a legal malpractice action. The order granted defendants’ motion for summary judgment and dismissed the complaint in its entirety.

It is hereby ordered that the order so appealed from is unanimously affirmed without costs.

Memorandum: Plaintiff commenced this legal malpractice action, alleging that defendants, who represented her in the[*1291] underlying toxic tort action, failed to comply with an order directing her to serve the defendants in the underlying action with her expert disclosure by a specified date. According to plaintiff, Supreme Court granted the motion of those defendants for summary judgment dismissing the complaint in its entirety based on plaintiffs failure to meet the deadline for expert disclosure.

Plaintiff contends that, because the defendants in this legal malpractice action previously moved for summary judgment dismissing the complaint on a different ground and prevailed only in part (Giardina v Lippes, 34 AD3d 1220 [2006]), their present motion for summary judgment dismissing the remainder of the complaint should have been denied. We reject that contention. Although successive summary judgment motions generally are disfavored absent newly discovered evidence or other sufficient cause (see Sexstone v Amato, 8 AD3d 1116 [2004], lv denied 3 NY3d 609 [2004]; Town of Wilson v Town of Newfane, 192 AD2d 1095 [1993]), neither Supreme Court nor this Court is precluded from addressing the merits of such a motion (see McIvor v Di Benedetto, 121 AD2d 519, 522 [1986]).

In order to prevail on a motion for summary judgment seeking dismissal of a complaint for legal malpractice, a defendant must establish that the plaintiff is unable to prove at least one necessary element of the legal malpractice action, i.e., that the plaintiff is unable to prove that he or she “would have been successful on the underlying claim but for [the defendant’s] negligence” (Potter v Polozie, 303 AD2d 943, 944 [2003]). Here, defendants met their burden of establishing that plaintiff would not have been successful on the underlying claim by submitting the affidavit of an expert who stated to a reasonable degree of medical certainty that there was no evidence to support the allegation of plaintiff that her injuries were caused by her exposure to a lawn care product. Plaintiff failed to raise an issue of fact with respect to the lack of causation, inasmuch as her expert simply made “subjective and conclusory” assertions with respect to causation in his affidavits (Parker v Mobil Oil Corp., 7 NY3d 434, 449 [2006], rearg denied 8 NY3d 828 [2007]). Present—Scudder, P.J., Martoche, Peradotto, Green and Gorski, JJ.