| Williams v Bushman |
| 2010 NY Slip Op 00840 [70 AD3d 679] |
| February 2, 2010 |
| Appellate Division, Second Department |
| Nathaniel N. Williams, Respondent, v David M. Bushman,Appellant. |
—[*1] Nathaniel N. Williams, Chestnut Ridge, N.Y., respondent pro se.
In an action to recover damages for legal malpractice, the defendant appeals from (1) anorder of the Supreme Court, Rockland County (Garvey, J.), dated May 21, 2008, which deniedhis motion for summary judgment dismissing the complaint, and (2) an order of the same courtdated April 14, 2009, which denied his motion to enforce an alleged settlement agreement.
Ordered that the order dated May 21, 2008, is reversed, on the law, and the defendant'smotion for summary judgment dismissing the complaint is granted; and it is further,
Ordered that the order dated April 14, 2009, is affirmed; and it is further,
Ordered that one bill of costs is awarded to the defendant.
The plaintiff, Nathaniel N. Williams, retained the law firm of Goldberg, Scudieri & Block,P.C. (hereinafter the Goldberg firm), to defend him in a mortgage foreclosure action commencedagainst him by Franklin Credit Management Corp. (hereinafter Franklin). Franklin moved forsummary judgment on the complaint, submitting in support of its motion the executed mortgageand evidence of Williams's default. In opposition, Mark K. Lindenberg, an attorney associatedwith the Goldberg firm, submitted an affidavit from Williams asserting, inter alia, that Williamshad tendered a notice rescinding the mortgage to Franklin's predecessor in interest, InterstateResource Corporation (hereinafter Interstate). Williams did not have a mail receipt or any otherproof that the rescission notice had been sent to Interstate. Williams also asserted that Interstatehad used unspecified "high pressure tactics" to induce him "to execute a high rate note andmortgage." In July 2000 the Supreme Court, Kings County, granted Franklin's motion forsummary judgment.
Williams subsequently retained the defendant, David M. Bushman, to prosecute an action inthe Supreme Court, Rockland County, to recover damages for legal malpractice againstLindenberg and the Goldberg firm. In July 2004 the Supreme Court granted the motion ofLindenberg and the Goldberg [*2]firm to dismiss the complaintas time-barred.
Williams then commenced the instant action alleging legal malpractice against Bushman onthe ground that he failed to commence the legal malpractice action against Lindenberg and theGoldberg firm within the statute of limitations. Bushman moved for summary judgmentdismissing the complaint, arguing that Williams could not show that he would have beensuccessful in the underlying legal malpractice action but for Bushman's alleged error, because hecould not show that Lindenberg committed malpractice or that any actions or omissions onLindenberg's part were a proximate cause of the unfavorable resolution of the foreclosureproceeding. In an order dated May 21, 2008, the Supreme Court denied Bushman's motion forsummary judgment.
Following the denial of summary judgment, Bushman moved to enforce a settlementagreement, which he alleged had been approved by Williams. In an order dated April 17, 2009,the Supreme Court denied Bushman's motion, holding that, although a settlement was apparentlyreached in principle, "it was never finalized by the execution of the settlement documents."
The Supreme Court properly determined that the parties did not enter into an enforceablesettlement agreement. CPLR 2104 provides that, unless a stipulation is made in open court, it isnot binding unless it is reflected in a writing signed by the parties or their attorneys, or in anorder. Here, although the parties discussed a proposed settlement at a court appearance, they didnot execute a writing, and they expressed their understanding that the settlement was not yetfinal (see Diarassouba v Urban, 71 AD3d 51 [2009]). The document Williams signed was a mere settlement proposal, which didnot fully reflect the terms of the settlement and specifically stated that it was not "intended as afinal resolution of all issues in the case," and that those issues "shall be subject to a more formalwritten Stipulation of Settlement." Moreover, the proposal was signed by Williams before thecourt conference, and thus could not have confirmed any agreement reached at that conference(cf. Davidson v Metropolitan Tr.Auth., 44 AD3d 819 [2007]). Accordingly, since the matter was not settled, we proceedto consider whether Bushman's motion for summary judgment was properly denied.
In an action to recover damages for legal malpractice, "a plaintiff must demonstrate that theattorney 'failed to exercise the ordinary reasonable skill and knowledge commonly possessed bya member of the legal profession' and that the attorney's breach of this duty proximately causedplaintiff 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]; see Rosenstrauss v Jacobs & Jacobs,56 AD3d 453 [2008]). To establish causation, "a plaintiff must show that he or she wouldhave prevailed in the underlying action or would not have incurred any damages, but for thelawyer's negligence" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at442).
Through, inter alia, the affidavit of an attorney who specialized in real estate law, Bushmanmade a prima facie showing that Lindenberg's alleged omissions did not constitute a failure toexercise the skill and knowledge commonly possessed by an attorney, and were not the cause ofFranklin's motion for summary judgment being granted. That motion was granted becauseFranklin submitted validly executed mortgage documents and evidence of Williams's default,and Williams could not raise a triable issue of fact (see Wells Fargo Bank, N.A. v Webster, 61 AD3d 856 [2009]).
In response to Bushman's prima facie showing, Williams failed to raise a triable issue of factas to whether he could have shown that Lindenberg committed malpractice and thereby prevailedin the first legal malpractice action. Williams failed to obtain any kind of proof of mailing whenhe allegedly sent the notice of rescission to Interstate, and his suggestion that Lindenberg couldhave procured, through discovery, evidence that Interstate actually received the notice isspeculative. With respect to Lindenberg's alleged failure to uncover evidence of Interstate's "highpressure tactics," Williams has never explained, at any stage of any of the multiple actionsinvolved here, exactly what those tactics were. Although he claims that he was told that thedocument he was signing was not final, he acknowledges that he was aware that he had 72 hoursto rescind the agreement (and he alleges that he, in fact, attempted to do so), and thus he couldnot have been prejudiced by such a misrepresentation.[*3]
Accordingly, the Supreme Court should have grantedBushman's motion for summary judgment dismissing the complaint. Prudenti, P.J., Mastro,Florio and Austin, JJ., concur.