The court properly dismissed the complaint for failure to establish proximate cause, a necessary element of legal malpractice, since even if a timely request for an extension to make payments under the underlying settlement agreement had been made, opposing counsel in that underlying action had unfettered discretion to grant or deny such a request ( see, Senise v Mackasek, 227 A.D.2d 184; Plentino Realty v. Gitomer, 216 A.D.2d 87, lv denied 87 N.Y.2d 805). To the extent plaintiff asserts that there was an oral promise of an extension after the deadline, which defendants negligently failed to reduce to writing, opposing counsel in the underlying action was without authority, under the terms of the settlement agreement, to make such an offer, especially without full compliance by plaintiff with the conditions precedent, which performance never occurred.

Concur — Rosenberger, J.P., Wallach, Nardelli, Williams and Colabella, JJ.