| Boone v Bender |
| 2010 NY Slip Op 05497 [74 AD3d 1111] |
| June 22, 2010 |
| Appellate Division, Second Department |
| Kathryn M. Boone, Respondent, v Joel C. Bender et al.,Appellants. |
—[*1] David M. Bushman, Nanuet, N.Y., for respondent.
In an action to recover damages for legal malpractice and breach of fiduciary duty, thedefendants appeal from an order of the Supreme Court, Westchester County (Giacomo, J.),entered July 22, 2009, which denied their motion for summary judgment dismissing thecomplaint.
Ordered that the order is reversed, on the law, with costs, and the defendants' motion forsummary judgment dismissing the complaint is granted.
The defendants represented the plaintiff in an action for a divorce and ancillary relief whichended in a settlement prior to trial. Subsequently, the plaintiff commenced this action against thedefendants, alleging legal malpractice on the ground that the defendants compromised their levelof advocacy and coerced her into entering into the settlement. The defendants moved forsummary judgment dismissing the complaint, and the Supreme Court denied the motion. Wereverse.
"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]). Furthermore,"[t]o establish causation, a plaintiff must show that he or she would have prevailed in theunderlying action or would not have incurred any damages, but for the lawyer's negligence"(Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 443). "A claim for legalmalpractice is viable, despite settlement of the underlying action, if it is alleged that settlementof the action was effectively compelled by the mistakes of counsel" (Tortura v Sullivan Papain Block McGrath& Cannavo, P.C., 21 AD3d 1082, 1083 [2005] [internal quotation marks omitted]).Moreover, "[t]o obtain summary judgment dismissing a complaint in an action to recoverdamages for legal malpractice, a defendant [*2]must demonstratethat the plaintiff is unable to prove at least one of the essential elements of its legal malpracticecause of action" (Boglia vGreenberg, 63 AD3d 973, 974 [2009]).
Ordinarily, an action for breach of fiduciary duty requires a plaintiff to merely identify aconflict of interest amounting to a substantial factor in the plaintiff's loss (see Ulico Cas. Co. v Wilson, Elser,Moskowitz, Edelman & Dicker, 56 AD3d 1, 10 [2008]). However, where, as here, theplaintiff's claims of breach of fiduciary duty are essentially claims of legal malpractice, they aregoverned by the same standard (seeBreslin Realty Dev. Corp. v Shaw, 72 AD3d 258, 261 [2010]; Ulico Cas. Co. vWilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d at 10). Thus, the plaintiff mustdemonstrate that "but for" the defendants' conduct, she would have prevailed in the underlyingmatter or would not have sustained any ascertainable damages (see Weil, Gotshal & Manges, LLP vFashion Boutique of Short Hills, Inc., 10 AD3d 267, 272 [2004]).
Here, the defendants met their prima facie burden of demonstrating that the complaint has nomerit (see CPLR 3212 [b]; GTF Mktg. v Colonial Aluminum Sales, 66 NY2d965, 967 [1985]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Theopen-court stipulation of settlement established that the plaintiff was satisfied with thedefendants' representation of her, that she had discussed the terms of the settlement with thedefendants, that she understood that she would have the right to a trial if she did not wish to enterinto the stipulation, that she had not been threatened or forced into entering into the stipulation,that she was entering into the stipulation voluntarily and of her own free will, that she had nottaken any medications that would hamper her ability to understand the court proceedings, andthat she had no additional questions for the defendants. "The fact that the plaintiff subsequentlywas unhappy with the settlement obtained by the defendant does not rise to the level of legalmalpractice" (Holschauer v Fisher,5 AD3d 553, 554 [2004]).
In opposition, the plaintiff failed to raise a triable issue of fact sufficient to defeat summaryjudgment (see GTF Mktg. v Colonial Aluminum Sales, 66 NY2d at 968). Thedefendants' reasonable exercise of judgment in pursuing a settlement did not constitutemalpractice (see generally Dimond vKazmierczuk & McGrath, 15 AD3d 526, 527 [2005]), and the plaintiff's allegations, ineffect, that the defendants did not zealously advocate on her behalf, and that the settlementprovided her with less monetary relief than that which she would have received after a trial, werespeculative and conclusory (see Holschauer v Fisher, 5 AD3d at 554; Pellegrino vFile, 291 AD2d 60, 63 [2002]). Rivera, J.P., Dillon, Florio and Balkin, JJ., concur.