Summary
finding that lower court erred in granting summary judgment in legal malpractice action because the "conflicting deposition testimony and affidavits submitted by the parties present a material issue of fact..."
Summary of this case from Arga Capital, Inc. v. Kreiner & Kreiner LLCOpinion
No. 4123.
September 25, 2008.
Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about October 15, 2007, which granted defendants' motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated.
Gardiner Nolan, Brooklyn (William Gardiner of counsel), for appellant.
Steinberg Cavaliere, LLP, White Plains (Neil W. Silberblatt of counsel), for respondents.
Before: Tom, J.P., Mazzarelli, Friedman, Williams and Moskowitz, JJ.
The conflicting deposition testimony and affidavits submitted by the parties present a material issue of fact whether plaintiff instructed defendants to attempt to settle the case underlying this legal malpractice action for $1.25 million ( see Langhorn v K. Solo Serv. Corp., 302 AD2d 307). As the record indicates that defense counsel in the underlying case was authorized and prepared to settle that case for the requested amount, a finding that plaintiff so instructed defendants would show a settlement opportunity lost through their malpractice ( see Masterson v Clark, 243 AD2d 411).