LAYTON v. KRASSNER (1997)

Order, Supreme Court, New York County (Diane Lebedeff, J.), entered on or about November 3, 1995, which granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.

In this legal malpractice action arising out of the parties' disagreement as to trial strategy in the underlying action, there are no triable issues of fact (see, Rodriguez v. Fredericks, 213 A.D.2d 176, 623 N.Y.S.2d 241, lv. denied 85 N.Y.2d 812, 631 N.Y.S.2d 288, 655 N.E.2d 401).   Plaintiff has failed to establish, as a matter of law, counsel's negligence, and has also failed to demonstrate that but for the nature of the representation, he would have prevailed in the underlying action (Pacesetter Communications Corp. v. Solin & Breindel, P.C., 150 A.D.2d 232, 541 N.Y.S.2d 404).   Counsel properly refused to pursue, and to retain a handwriting expert in support of, plaintiff's patently meritless claim that his signature on a mortgage was a forgery.

We have considered plaintiff's remaining claims and find them to be without merit.

MEMORANDUM DECISION.