| Katz v Herzfeld & Rubin, P.C. |
| 2008 NY Slip Op 01507 [48 AD3d 640] |
| February 19, 2008 |
| Appellate Division, Second Department |
| Max Markus Katz et al., Appellants, v Herzfeld & Rubin,P.C., Respondent. |
—[*1] Rivkin Radler LLP, Uniondale, N.Y. (Evan H. Krinick, Cheryl F. Korman, Todd Belous, andHarris J. Zakarin of counsel) for respondent.
In an action, inter alia, to recover damages for legal malpractice, the plaintiffs appeal (1)from an order of the Supreme Court, Nassau County (Cozzens, Jr., J.), dated October 2, 2006,which granted that branch of the defendant's motion which was pursuant to CPLR 3211 (a) (1) todismiss the complaint, and denied, as academic, the cross motion of the plaintiff Ida Katz forsummary judgment on the issue of liability on so much of the complaint as was asserted by herand for severance, and (2) from a judgment of the same court entered November 22, 2006, which,upon the order, is in favor of the defendant and against them, dismissing the complaint. Thenotice of appeal from the order dated October 2, 2006, is deemed also to be a notice of appealfrom the judgment (see CPLR 5501 [c]).
Ordered that the appeal from the order dated October 2, 2006 is dismissed; and it is further,
Ordered that the judgment is affirmed; and it is further,
Ordered that one bill of costs is awarded to the respondent.[*2]
The appeal from the intermediate order must bedismissed because the right of direct appeal therefrom terminated with the entry of judgment inthe action (see Matter of Aho, 39 NY2d 241, 248 [1976]). The issues raised on the appealfrom the order are brought up for review and have been considered on the appeal from thejudgment (see CPLR 5501 [a] [1]).
To establish a cause of action to recover damages for legal malpractice, a plaintiff mustprove that the defendant attorney failed to exercise that degree of care, skill, and diligencecommonly possessed by a member of the legal community, and that the attorney's breach of thisduty proximately caused damages to the plaintiff (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d438, 442 [2007]).
Here, the complaint alleges that the plaintiffs were forced to settle their underlying personalinjury action for an amount far below what they would have recovered had it not been for thedefendant's actions. A settlement of the underlying claim does not preclude a subsequent actionfor legal malpractice where the settlement was effectively compelled by the mistakes of counsel(see Tortura v Sullivan Papain BlockMcGrath & Cannavo, P.C., 21 AD3d 1082 [2005]; Rau v Borenkoff, 262 AD2d388 [1999]; Lattimore v Bergman, 224 AD2d 497 [1996]; Bernstein v Oppenheim &Co., 160 AD2d 428, 430 [1990]).
In support of the motion to dismiss, the defendant submitted evidence establishing that theacts of malpractice alleged in the complaint, including the defendant's refusal to pursue a highlyquestionable claim for exaggerated lost earnings damages based on the injured plaintiff's lifeexpectancy and its purported delay in retaining an economist to evaluate the lost earnings claim,did not cause any alleged reduction in the amount of the monetary settlement reached in theunderlying personal injury action. The defendant demonstrated that the plaintiffs discharged itand hired new counsel five months before they settled the underlying action. Under thesecircumstances, the defendant established that its actions did not proximately cause the plaintiffs'alleged damages, and that subsequent counsel had a sufficient opportunity to protect theplaintiffs' rights by pursuing any remedies it deemed appropriate on their behalf (see Ramcharan v Pariser, 20 AD3d556 [2005]; Perks v Lauto & Garabedian, 306 AD2d 261 [2003]; Albin vPearson, 289 AD2d 272 [2001]; Kozmol v Law Firm of Allen L. Rothenberg, 241AD2d 484 [1997]). Thus, the Supreme Court properly dismissed the legal malpractice cause ofaction.
Additionally, the Supreme Court correctly dismissed the remaining causes of action as theywere duplicative of the legal malpractice claim (see Amodeo v Kolodny, P.C., 35 AD3d 773 [2006]; Shivers v Siegel, 11 AD3d 447[2004]).
In light of the proper dismissal of the complaint, the Supreme Court correctly denied thecross motion of the plaintiff Ida Katz as academic. Mastro, J.P., Fisher, Carni and McCarthy, JJ.,concur.