| Somma v Dansker & Aspromonte Assoc. |
| 2007 NY Slip Op 07487 [44 AD3d 376] |
| October 9, 2007 |
| Appellate Division, First Department |
| Aniello Somma, Appellant, v Dansker & AspromonteAssociates et al., Respondents. |
—[*1] Kaufman Borgeest & Ryan LLP, New York (Kristopher M. Dennis of counsel), forrespondents.
Order, Supreme Court, New York County (Martin Shulman, J.), entered September 25, 2006,which granted defendants' motion to dismiss the complaint based on documentary evidence andfor failure to state a cause of action, and order, same court and Justice, entered February 22,2007, which denied plaintiff's motion to renew and, upon reargument, adhered to the prior ruling,unanimously affirmed, without costs.
Plaintiff claims that defendants' alleged mistakes effectively compelled him to settle theunderlying action for less than his actual damages. Settlement of an underlying action will notbar a claim for legal malpractice, but defendants no longer represented plaintiff at the time heagreed to settle (see Bernstein v Oppenheim & Co., 160 AD2d 428, 431 [1990]).Moreover, plaintiff's successor counsel had sufficient time and opportunity to adequately protectplaintiff's rights (see Golden v Cascione, Chechanover & Purcigliotti, 286 AD2d 281[2001]; see also Greenwich v Markhoff, 234 AD2d 112, 114 [1996] [complaint seekingto hold two successive counsel liable for failing to commence any action prior to expiration ofstatute of limitations was properly dismissed as against first law firm because, inter alia, suchcounsel had no "responsibility for allowing the Statute of Limitations to expire some two years"after it had been discharged]). Plaintiff's claim that the federal court in the underlying actionwould not have permitted amendment of a pretrial order filed by defendants is speculative (see Brooks v Lewin, 21 AD3d731, 734-735 [2005], lv denied 6 NY3d 713 [2006]).[*2]
We have considered plaintiff's remaining claims and findthem unavailing. Concur—Lippman, P.J., Tom, Marlow, Gonzalez and Malone, JJ.