Arias v. Kelner

243 A.D.2d 393, 663 N.Y.S.2d 193, 1997 N.Y. App. Div. LEXIS 10731

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 28, 1997
• Status: Published

Opinion

Judgment, Supreme Court, Bronx County (Jerry Crispino, J.), entered on or about November 6, 1996, dismissing the complaint and bringing up for review an order, same court and Justice, entered on or about September 19, 1996, which, inter alia, granted defendants’ motion for summary judgment, unanimously affirmed, with costs.

The court properly dismissed the complaint for failure to establish proximate cause, a necessary element of legal malpractice, since even if a timely request for an extension to make payments under the underlying settlement agreement had been made, opposing counsel in that underlying action had unfettered discretion to grant or deny such a request (see, Senise v Mackasek, 227 AD2d 184; Plentino Realty v Gitomer, 216 AD2d 87, lv denied 87 NY2d 805). To the extent plaintiff asserts that there was an oral promise of an extension after the deadline, which defendants negligently failed to reduce to writing, opposing counsel in the underlying action was without authority, under the terms of the settlement agreement, to make such an offer, especially without full compliance by plaintiff with the conditions precedent, which performance never occurred. Concur—Rosenberger, J. P., Wallach, Nardelli, Williams and Colabella, JJ.