LEONARD ENGLERT AND YVONNE ENGLERT PLAINTIFFS RESPONDENTS v. GERALD SCHAFFER JR ESQ CELLINO BARNES DEFENDANTS APPELLANTS STEVEN BARNES ESQ INDIVIDUALLY AND DOING BUSINESS AS THE BARNES FIRM AS SUCCESSORS IN INTEREST TO CELLINO BARNES AND ROSS CELLINO INDIVIDUALLY AND AS PARTNER IN THE LAW FIRM OF CELLINO BARNES DEFENDANTS (2012)

MEMORANDUM AND ORDER

It is hereby ORDERED that the order so appealed from is unanimously affirmed without costs.

Memorandum:  Plaintiffs commenced this legal malpractice action, and we previously dismissed all but the third cause of action for breach of fiduciary duty (Englert v. Schaffer, 61 AD3d 1362, rearg. denied 64 AD3d 1200).   Supreme Court granted in part the summary judgment motion of defendants by dismissing the third cause of action against defendants Steven Barnes and Ross Cellino, but denied the motion with respect to defendants Gerald W. Schaffer, Jr., Esq., and Cellino & Barnes, P.C. (defendants).

We reject defendants' contention that summary judgment in their favor is required on the ground that plaintiffs could not establish that they would have accepted a settlement offer made in the underlying personal injury case if Schaffer had notified them of that offer.   When the alleged negligence of defendant involves a failure to communicate a settlement offer, the plaintiff must “demonstrate that, but for the [defendant's] alleged negligence, [plaintiff] would have accepted the offer of settlement and would not have sustained any damages” (Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303 A.D.2d 561, 562, lv denied 100 N.Y.2d 511).   Even assuming, arguendo, that defendants met their initial burden, we conclude that plaintiffs raised a triable issue of fact whether they would have accepted the settlement offer if Schaffer had promptly communicated it to them (see generally Alvarez v. Prospect Hosp., 68 N.Y.2d 320, 324).

Frances E. Cafarell

Clerk of the Court