Summary
refusing to apply the abandonment doctrine because the plaintiffs "demonstrated that there are issues of fact as to their former attorney's negligence"
Summary of this case from Crestwood Cove Apart. v. TurnerOpinion
February 13, 1996
Appeal from the Supreme Court, Queens County (Price, J.).
Ordered that the order is affirmed, with costs.
A settlement and release in an underlying action enable a plaintiff to obviate the full damage that would otherwise have flowed from his attorney's negligence and do not preclude a subsequent action for legal malpractice where the settlement was compelled because of the mistakes of former counsel (see, Wille v. Maier, 256 N.Y. 465; Mazzei v. Pokorny, Schrenzel Pokorny, 125 A.D.2d 374; Cohen v. Lipsig, 92 A.D.2d 536; Titsworth v. Mondo, 95 Misc.2d 233). The plaintiffs at bar have demonstrated that there are issues of fact as to their former attorney's negligence, the merits of their underlying personal injury claim, and whether they freely elected to settle their personal injury action such that a trial is warranted (see, Cohen v. Lipsig, supra). Sullivan, J.P., Pizzuto, Goldstein and Florio, JJ., concur.