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

Doris SILVA, Administratrix of the Estate of Annette Medina, Plaintiff-Appellant, v. WORBY, GRONER, EDELMAN, LLP, et al., Defendants-Respondents.

Decided: September 25, 2008

TOM, J.P., MAZZARELLI, FRIEDMAN, WILLIAMS, MOSKOWITZ, JJ. Gardiner & Nolan, Brooklyn (William Gardiner of counsel), for appellant. Steinberg & Cavaliere, LLP, White Plains (Neil W. Silberblatt of counsel), for respondents.

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.

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 A.D.2d 307, 754 N.Y.S.2d 873 [2003] ).   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 A.D.2d 411, 663 N.Y.S.2d 210 [1997] ).