TORTURA v. SULLIVAN PAPAIN BLOCK McGRATH CANNAVO

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

Joseph TORTURA, appellant, v. SULLIVAN PAPAIN BLOCK McGRATH & CANNAVO, P.C., respondents.

Decided: September 26, 2005

A. GAIL PRUDENTI, P.J., ANITA R. FLORIO, STEPHEN G. CRANE, and ROBERT A. LIFSON, JJ. Andrew Lavoott Bluestone, New York, N.Y., for appellant. Wilson, Elser, Moskowitz, Edelman & Dicker, LLP, New York, N.Y. (Richard E. Lerner and Jamie R. Wozman of counsel), for respondent.

In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals from an order of the Supreme Court, Kings County (Douglass, J.), dated September 14, 2004, which granted the defendant's motion pursuant to CPLR 3211(a)(7) to dismiss the complaint for failure to state a cause of action.

ORDERED that the order is affirmed, with costs.

 The defendant represented the plaintiff in a medical malpractice action which ended in a settlement during the trial.   Subsequently, the plaintiff commenced this action against the defendant, alleging legal malpractice and breach of contract.

 “To establish a cause of action to recover damages for legal malpractice, a plaintiff must prove (1) that the defendant attorney failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community, (2) proximate cause, (3) damages, and (4) that the plaintiff would have been successful in the underlying action had the attorney exercised due care” (Iannarone v. Gramer, 256 A.D.2d 443, 444, 682 N.Y.S.2d 84;  see Blank v. Harry Katz, P.C., 3 A.D.3d 512, 513, 770 N.Y.S.2d 742).  “A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel” (Bernstein v. Oppenheim & Co., 160 A.D.2d 428, 430, 554 N.Y.S.2d 487;  see Rau v. Borenkoff, 262 A.D.2d 388, 389, 691 N.Y.S.2d 140;  cf. Lattimore v. Bergman, 224 A.D.2d 497, 637 N.Y.S.2d 777;  Cohen v. Lipsig, 92 A.D.2d 536, 459 N.Y.S.2d 98).   Viewing the complaint in the light most favorable to the plaintiff (see Leon v. Martinez, 84 N.Y.2d 83, 87-88, 614 N.Y.S.2d 972, 638 N.E.2d 511), we find that it fails to plead specific factual allegations demonstrating that, but for the defendant's alleged negligence, there would have been a more favorable outcome in the underlying action (see Ferdinand v. Crecca & Blair, 5 A.D.3d 538, 539-540, 774 N.Y.S.2d 714;  Palazzolo v. Herrick, Feinstein, LLP, 298 A.D.2d 372, 751 N.Y.S.2d 401;  Dweck Law Firm v. Mann, 283 A.D.2d 292, 293, 727 N.Y.S.2d 58;  Rau v. Borenkoff, supra ).

 Moreover, the Supreme Court properly dismissed the plaintiff's cause of action alleging breach of contract because it was duplicative of the legal malpractice cause of action and arose from the same facts as that claim (see Shivers v. Siegel, 11 A.D.3d 447, 782 N.Y.S.2d 752;  Daniels v. Lebit, 299 A.D.2d 310, 749 N.Y.S.2d 149).

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