| Noone v Stieglitz |
| 2009 NY Slip Op 01093 [59 AD3d 505] |
| February 10, 2009 |
| Appellate Division, Second Department |
| Janice Noone, Appellant, v Michael Stieglitz et al.,Respondents, et al., Defendants. |
—[*1] Lester Schwab Katz & Dwyer, LLP, New York, N.Y. (Steven B. Prystowsky of counsel), forrespondents.
In an action, inter alia, to recover damages for legal malpractice, the plaintiff appeals froman order of the Supreme Court, Westchester County (Loehr, J.), dated October 26, 2007, whichgranted the motion of the defendants Michael Stieglitz and Sobel, Ross, Fleigel & Suss, LLP, forsummary judgment dismissing the complaint insofar as asserted against them.
Ordered that the order is affirmed, with costs.
The defendants Michael Stieglitz and Sobel, Ross, Fleigel & Suss, LLP (hereinafter therespondents), represented the plaintiff in an underlying personal injury action to recoverdamages she sustained in an automobile accident, which occurred when the defendant in theunderlying action drove his truck into her lane. The defendant in the underlying action testifiedthat he was forced into the plaintiff's lane by a yellow car which drove into his lane from the sideof the road. The plaintiff relied upon the testimony of a nonparty eyewitness, who stated therewas no yellow car.
During jury deliberations at the trial on the issue of liability in the underlying action, theplaintiff accepted a "high-low" settlement offer whereby she would receive $1,000,000 if thejury found in her favor on the issue of liability and $500,000 if the jury found in favor of thedefendant. The jury returned a verdict for the defendant.
The plaintiff then commenced the instant action to recover damages for legal malpracticeagainst the respondents alleging, inter alia, that they committed legal malpractice by failing topresent at the trial a map of the area of the road where the accident occurred and related recordsof [*2]recent highway construction demonstrating that there wasno shoulder or entrance on the side of the road from which the yellow car could have come. Theplaintiff further alleged that the respondents failed to advise her of the consequences of thehigh-low settlement.
The respondents moved for summary judgment on the grounds, inter alia, that the plaintiffwas advised of the consequences of the high-low settlement on the record in the underlyingaction, their strategy was to rely upon the favorable testimony of a nonparty eyewitness, andsubmitting a map of the road would not have helped the plaintiff's case. The respondents notedthat at the trial in the underlying action, the plaintiff's position was that if there was no shoulder,there was no place for the yellow car to come from, but if there was some sort of shoulder, thedefendant in the underlying action should have used the shoulder rather than the plaintiff's laneto avoid the yellow car.
The Supreme Court granted the respondents' motion for summary judgment dismissing thecomplaint insofar as asserted against them, noting that the respondents "offered a reasonable trialstrategy as to why they did not submit the maps and diagrams." The plaintiff appeals.
To establish a claim to recover damages for legal malpractice, "a plaintiff must demonstratethat the attorney 'failed to exercise the ordinary reasonable skill and knowledge commonlypossessed by a member of the legal profession' and that the attorney's breach of this dutyproximately caused plaintiff to sustain actual and ascertainable damages" (Rudolf v Shayne, Dachs, Stanisci, Corker& Sauer, 8 NY3d 438, 442 [2007], quoting McCoy v Feinman, 99 NY2d 295,301-302 [2002])."Attorneys are free to select among reasonable courses of action in prosecutingclients' cases without thereby exposing themselves to liability for malpractice" (Iocovello v Weingrad & Weingrad, 4AD3d 208, 208 [2004]; see Rosner v Paley, 65 NY2d 736, 738 [1985]). Here, therespondents established their entitlement to judgment as a matter of law by demonstrating thatthey were pursuing a reasonable trial strategy. Further, they demonstrated that the plaintiff wasadvised of the consequences of the high-low settlement. In opposition, the plaintiff failed to raisea triable issue of fact.
Accordingly, the respondents' motion for summary judgment was properly granted. Covello,J.P., Angiolillo, Belen and Chambers, JJ., concur.