| Katebi v Fink |
| 2008 NY Slip Op 04141 [51 AD3d 424] |
| May 1, 2008 |
| Appellate Division, First Department |
| Suri Katebi, Appellant, v Paul Fink et al.,Respondents. |
—[*1] Kaufman Borgeest & Ryan, LLP, New York (Andrew S. Kowlowitz of counsel), forrespondents.
Order, Supreme Court, New York County (Edward H. Lehner, J.), entered March 22, 2007,which granted defendants' motion to dismiss the complaint for failure to state a cause of actionfor legal malpractice, unanimously affirmed, without costs.
While "[a] claim for legal malpractice is viable, despite settlement of the underlying action, ifit is alleged that settlement of the action was effectively compelled by the mistakes of counsel"(Bernstein v Oppenheim & Co., 160 AD2d 428, 430 [1990]), here, the complaint iscontradicted by the evidentiary material submitted on the motion to dismiss (seeGuggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). Plaintiff testified that she did notwish to proceed with the trial of the matrimonial action, that she decided instead to enter into thestipulation of settlement because she wanted no further connection with her husband, that sheunderstood that by settling the action before the completion of the trial she was foregoing theright to pursue the funds allegedly dissipated by him, and that she was satisfied with the servicesprovided by her attorney.
We have considered plaintiff's remaining contentions and find them unavailing.Concur—Mazzarelli, J.P., Friedman, Sweeny and Acosta, JJ.