In this legal-malpractice action, defendants, Nathan L. Dembin & Associates, P.C., and Nathan L. Dembin, represented plaintiff, Paul Ackerman, M.D., in a professional-misconduct investigation by the New York State Department of Health, Office of Professional Medical Conduct (OPMC). Plaintiff, unhappy with the representation, now asserts three professional-negligence claims and one breach-of-contract claim against defendants. Defendants move for summary judgment. Defendants’ motion is granted. BACKGROUND Plaintiff is an orthopedist. He was charged with professional misconduct by OPMC for allegedly inappropriately performing arthroscopic surgery on a patient, failing to maintain adequate medical records for patients, and failing to respond to written requests by the Department of Health for records (OPMC statement of charges, NYSCEF No. 40). After a disciplinary interview, defendants negotiated a settlement, called a consent order, with OPMC. Defendants attempted to negotiate a censure and reprimand with course work in ethics, risk management and documentation, and a year of probation (April 17, 2015 Dembin letter to OPMC, NYSCEF Doc No. 66). Plaintiff eventually agreed to three years’ probation and a censure and reprimand, and conceded that he could not “successfully defend against at least one of the acts of misconduct alleged” (consent order, NYSCEF Doc No. 42). Plaintiff later commenced this legal malpractice action against defendants, claiming that defendants failed to investigate properly and submit mitigating documents, to advise plaintiff about the ramifications of entering into the consent order, and to respond to requests for records in the underlying OPMC action (complaint, NYSCEF Doc No. 26). Plaintiff alleges that as a result of the consent order, the Worker’s Compensation Board and BlueCross Insurance Company intended to suspend him from their programs and that he was on the verge of losing his privileges at North Shore University Hospital (id.). Defendants now move under CPLR 3212 for summary judgment dismissing the complaint. DISCUSSION Legal malpractice is an attorney’s failure to exercise “reasonable skill and knowledge commonly possessed by a member of the legal profession” (Darby & Darby v. VSI Intl., 95 NY2d 308, 313 [2000] [internal quotation marks and citation omitted]). A plaintiff asserting a malpractice claim must establish (1) the negligence of the attorney; (2) that the attorney’s negligence was a proximate cause of the loss sustained; and (3) that the plaintiff was damaged as a result of the attorney’s actions (Tydings v. Greenfield, Stein & Senior, LLP, 43 AD3d 680, 682 [1st Dept 2007], affd 11 NY3d 195 [2008]). A malpractice defendant moving for summary judgment must present evidence in admissible form establishing that the plaintiff is unable to prove at least one of the three elements of a cause of action (Crawford v. McBride, 303 AD2d 442, 442 [2d Dept 2003]). Defendants argue that plaintiff cannot satisfy any elements of a legal malpractice claim. They contend that they were not negligent in their representation of plaintiff. Defendant Dembin testified that he advised plaintiff repeatedly about the consequences of signing the consent order and argues that any allegation that pertinent records were not provided to OPMC are baseless (aff in support of motion, NYSCEF Doc No. 22
17, 30). Defendants point to plaintiff’s deposition transcript, in which Ackerman admits that by the time of the OPMC interview, OPMC was in possession of all necessary records and that he read the consent order before signing it, with the knowledge that the order would be published publicly and available online (id.
