Opinion
2018–03703 Index No. 609329/17
08-07-2019
GLENWAYNE DEVELOPMENT CORP., respondent, v. JAMES J. CORBETT, P.C., etc., et al., appellants.
Winget, Spadafora & Schwartzberg, LLP, New York, N.Y. (Anthony D. Green of counsel), for appellants. Law Offices of David A. Antwork, P.C., Merrick, NY, for respondent.
Winget, Spadafora & Schwartzberg, LLP, New York, N.Y. (Anthony D. Green of counsel), for appellants.
Law Offices of David A. Antwork, P.C., Merrick, NY, for respondent.
ALAN D. SCHEINKMAN, P.J., JOSEPH J. MALTESE, FRANCESCA E. CONNOLLY, VALERIE BRATHWAITE NELSON, JJ.
DECISION & ORDER In an action to recover damages for legal malpractice, the defendants appeal from an order of the Supreme Court, Nassau County (Antonio I. Brandveen, J.), entered February 8, 2018. The order denied the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint.
ORDERED that the order is reversed, on the law, with costs, and the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint is granted.
The defendants, James J. Corbett, P.C., and James J. Corbett, represented the plaintiff in an underlying action involving property damage allegedly caused by the plaintiff's tenant. After the underlying action settled, the plaintiff commenced this action against the defendants to recover damages for legal malpractice, alleging that it could have achieved a better outcome in the underlying action had the defendants not negligently failed to assert a cross claim against a third-party defendant in that action. The defendants moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint. The Supreme Court denied the motion, and the defendants appeal.
A motion to dismiss a complaint pursuant to CPLR 3211(a)(1) "may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ; see Whitebox Concentrated Convertible Arbitrage Partners, L.P. v. Superior Well Servs., Inc., 20 N.Y.3d 59, 63, 956 N.Y.S.2d 439, 980 N.E.2d 487 ; Leon v. Martinez, 84 N.Y.2d 83, 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ).
"In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney ‘failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages" ( Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385, quoting McCoy v. Feinman, 99 N.Y.2d 295, 301, 755 N.Y.S.2d 693, 785 N.E.2d 714 ; see Darby & Darby v. VSI Intl., 95 N.Y.2d 308, 313, 716 N.Y.S.2d 378, 739 N.E.2d 744 ). "To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer's negligence" ( Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d at 442, 835 N.Y.S.2d 534, 867 N.E.2d 385 ; see Davis v. Klein, 88 N.Y.2d 1008, 1009, 648 N.Y.S.2d 871, 671 N.E.2d 1268 ). A legal malpractice cause of action "is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel" ( Bernstein v. Oppenheim & Co., 160 A.D.2d 428, 430, 554 N.Y.S.2d 487 ; see Maroulis v. Sari M. Friedman, P.C, 153 A.D.3d 1250, 1251, 60 N.Y.S.3d 468 ; Keness v. Feldman, Kramer & Monaco, P.C., 105 A.D.3d 812, 813, 963 N.Y.S.2d 313 ; Tortura v. Sullivan Papain Block McGrath & Cannavo, P.C., 21 A.D.3d 1082, 1083, 803 N.Y.S.2d 571 ).
In support of their motion, the defendants submitted the transcript of the court proceeding setting forth the terms of the settlement of the underlying action, which conclusively established that the plaintiff was not coerced into settling (see Schiller v. Bender, Burrows & Rosenthal, LLP, 116 A.D.3d 756, 757, 983 N.Y.S.2d 594 ; Pacella v. Whiteman Osterman & Hanna, 14 A.D.3d 545, 787 N.Y.S.2d 665 ; Laruccia v. Forchelli, Curto, Schwartz, Mineo, Carlino & Cohn, 295 A.D.2d 321, 322, 744 N.Y.S.2d 335 ). The plaintiff's allegations that it was coerced into settling the underlying action were utterly refuted by the admissions of its principals during the settlement proceeding that they had discussed the terms of the settlement with their attorneys, understood the settlement terms, and had no questions about them; that they were entering into the settlement freely, of their own volition, and without undue influence or coercion; and that they were satisfied with their legal representation (see Schiller v. Bender, Burrows & Rosenthal, LLP, 116 A.D.3d at 757–758, 983 N.Y.S.2d 594 ; Boone v. Bender, 74 A.D.3d 1111, 1113, 904 N.Y.S.2d 467 ).
Accordingly, the defendants were entitled to dismissal of the complaint pursuant to CPLR 3211(a)(1).
The defendants' remaining contention need not be addressed in light of our determination.
SCHEINKMAN, P.J., MALTESE, CONNOLLY and BRATHWAITE NELSON, JJ., concur.