KUTNER v. CATTERSON (2008)

In an action to recover unpaid legal fees, the defendant/ counterclaim plaintiff appeals from an order of the Supreme Court, Nassau County (McCarty, J.), entered September 27, 2007, which denied her motion for summary judgment dismissing the complaint and on her counterclaim.

ORDERED that the order is affirmed, with costs.

This action to recover unpaid legal fees arises from the representation by the plaintiffs/counterclaim defendants (hereinafter the plaintiffs) of the defendant/counterclaim plaintiff (hereinafter the defendant) in a matrimonial action.   The Supreme Court denied the defendant's motion for summary judgment dismissing the complaint and on her counterclaim alleging legal malpractice, finding that triable issues of fact existed.   We affirm.

 To sustain a cause of action alleging legal malpractice, a plaintiff must establish 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 the plaintiff 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;  see Hearst v. Hearst, 50 A.D.3d 959, 963, 857 N.Y.S.2d 596;  Bauza v. Livington, 40 A.D.3d 791, 792-793, 836 N.Y.S.2d 645;  Magnacoustics, Inc. v. Ostrolenk, Faber, Gerb & Soffen, 303 A.D.2d 561, 562, 755 N.Y.S.2d 726).  “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, 1009-1010, 648 N.Y.S.2d 871, 671 N.E.2d 1268;  Barnett v. Schwartz, 47 A.D.3d 197, 203-204, 848 N.Y.S.2d 663).   A settlement of an underlying claim does not preclude a subsequent action for legal malpractice where the settlement was effectively compelled by the mistakes of counsel (see N.A. Kerson Co. v. Shayne, Dachs, Weiss, Kolbrenner, Levy & Levine, 45 N.Y.2d 730, 732, 408 N.Y.S.2d 475, 380 N.E.2d 302, affg. on Suozzi concurring memorandum 59 A.D.2d 551, 552, 397 N.Y.S.2d 142;  Tortura v. Sullivan Papain Block McGrath & Cannavo, P.C., 21 A.D.3d 1082, 1083, 803 N.Y.S.2d 571;  Rau v. Borenkoff, 262 A.D.2d 388, 389, 691 N.Y.S.2d 140;  U.S. Ice Cream Corp. v. Bizar, 240 A.D.2d 654, 655, 659 N.Y.S.2d 492;  Lattimore v. Bergman, 224 A.D.2d 497, 637 N.Y.S.2d 777).

 Here, the Supreme Court properly determined that triable issues of fact exist precluding summary disposition in favor of the defendant.   Although the defendant's allegations may be legally sufficient to support her counterclaim alleging legal malpractice (see Gaslow v. Phillips Nizer Benjamin Krim & Ballon, 286 A.D.2d 703, 705, 730 N.Y.S.2d 146;  Rapp v. Lauer, 200 A.D.2d 726, 607 N.Y.S.2d 104;  cf. Ippolito v. McCormack, Damiani, Lowe & Mellon, 265 A.D.2d 303, 696 N.Y.S.2d 203;  Ostriker v. Taylor, Atkins & Ostrow, 258 A.D.2d 572, 685 N.Y.S.2d 470), the plaintiffs raised a triable issue of fact as to the appropriateness of their actions as measured against the “ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession” (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 Hearst v. Hearst, 50 A.D.3d at 963, 857 N.Y.S.2d 596).

We decline the plaintiffs' request to impose a sanction upon the defendant for pursuing an allegedly frivolous appeal (see 22 NYCRR 130-1.1).