Summary
affirming dismissal of malpractice claim based on erroneous settlement advice where ‘the amount of the settlement ... exceed[ed] the [amount] plaintiff previously stipulated to accept in full satisfaction of [his] underlying claims, plus interest"
Summary of this case from Prout v. VladeckOpinion
2309
November 21, 2002.
Order, Supreme Court, New York County (Louis York, J.), entered June 25, 2001, which, to the extent appealed from as limited by the brief, granted defendants' cross motion, dismissing plaintiff's action for legal malpractice, unanimously affirmed, without costs.
BRIAN J. ISAAC, for plaintiff-appellant.
NORMAN R. FERREN, for defendants-respondents.
Before: Saxe, J.P., Buckley, Rosenberger, Lerner, Gonzalez, JJ.
Settlement of an action will not preclude an award of damages for legal malpractice where the plaintiff is able to demonstrate that the settlement was caused by the malpractice (see Cohen v. Lipsig, 92 A.D.2d 536) and resulting damages (see McKenna v. Forsyth Forsyth, 280 A.D.2d 79, 80, lv denied 96 N.Y.2d 720), namely, that the value of the underlying claim was in excess of the settlement. In this case, however, it is clear, as a matter of law, that plaintiff's settlement of his underlying claims was not eventuated by the alleged malpractice. In any event, the amount of the settlement, $1,250,000, exceeds the $700,000 plaintiff previously stipulated to accept in full satisfaction of those underlying claims, plus interest (see Titsworth v. Mondo, 95 Misc.2d 233).
We have considered plaintiff's remaining contentions and find them unavailing.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.