
    Jeanette M. Bihari, Respondent, v Leonard F. Walentynowicz, Appellant.
    [765 NYS2d 558]
   Appeal from an order of Supreme Court, Erie County (Mintz, J.), entered May 8, 2002, which granted that part of plaintiff’s motion seeking partial summary judgment on the issue of liability and denied defendant’s cross motion seeking summary judgment dismissing the complaint.

It is hereby ordered that the order so appealed from be and the same hereby is unanimously modified on the law by denying plaintiffs motion in its entirety and as modified the order is affirmed without costs.

Memorandum: Although Supreme Court properly denied defendant’s cross motion seeking summary judgment dismissing the complaint, it erred in granting that part of plaintiffs motion seeking partial summary judgment on the issue of liability in this legal malpractice action. It is well settled that a prima facie case of legal malpractice requires proof not only that the attorney “failed to exercise the degree of skill commonly exercised by an ordinary member of the legal community * * * [but also] that the client sustained damages as a direct result of the attorney’s actions” (McKenna v Forsyth & Forsyth, 280 AD2d 79, 80 [2001], lv denied 96 NY2d 720 [2001]; see Robbins v Harris Beach & Wilcox, 291 AD2d 797, 798 [2002]). We conclude that there is an issue of fact here whether any act or omission on the part of defendant proximately caused damage to plaintiff. We therefore modify the order by denying plaintiffs motion in its entirety. Present — Green, J.P., Pine, Wisner and Hayes, JJ.  