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Supreme Court, Appellate Division, First Department, New York.

Mark KOMLOSI, Plaintiff-Appellant, v. BURCHETTA, BROFFMAN, COLLINS & HANLEY, LLP, et al., Defendants-Respondents.

Decided: March 24, 2005

BUCKLEY, P.J., SAXE, FRIEDMAN, WILLIAMS, JJ. Bolatti & Griffith, LLP, New York (Edward Griffith of counsel), for appellant. Wilson, Elser, Moskowitz, Edelman & Dicker LLP, New York (Cristina R. Yannucci of counsel), for respondents.

Order, Supreme Court, New York County (Rosalyn Richter, J.), entered August 13, 2003, which, in an action for legal malpractice arising out of underlying actions for malicious prosecution, granted defendants' motion to dismiss the complaint for failure to state a cause of action, and denied plaintiff's cross motion to amend the complaint and for a stay of proceedings pending his retention of an attorney, unanimously affirmed, without costs.

Plaintiff, who prevailed in a federal court action tried by defendants but has been unable to collect any portion of the judgment, claims that defendants committed malpractice by taking the position in the federal court action that the individual defendant therein, a State employee, acted intentionally rather than recklessly or with gross negligence.   According to plaintiff, had the jury found that the individual defendant acted recklessly or with gross negligence rather than intentionally, the State would have been required to indemnify her under Public Officers Law § 17.   However, defendants, who were retained on the eve of trial 10 years after the federal court action was filed, could not have altered the position that plaintiff had consistently taken since the commencement of the action concerning the individual defendant's state of mind.   In other respects, plaintiff's proposed amended complaint does not cure the infirmities in the original complaint.   In view of the foregoing, and as plaintiff is represented by an attorney on the appeal, plaintiff's request for a stay is moot.

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