Fusco v. Fauci

299 A.D.2d 263, 749 N.Y.S.2d 715, 2002 N.Y. App. Div. LEXIS 11272

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: November 21, 2002
• Status: Published

Opinion

Order, Supreme Court, New York County (Louis York, J.), entered June 25, 2001, which, to the extent appealed from as limited by the brief, granted defendants’ cross motion, dismissing plaintiffs action for legal malpractice, unanimously affirmed, without costs.

Settlement of an action will not preclude an award of damages for legal malpractice where the plaintiff is able to demonstrate that the settlement was caused by the malpractice (see Cohen v Lipsig, 92 AD2d 536) and resulting damages (see McKenna v Forsyth & Forsyth, 280 AD2d 79, 80, lv denied 96 NY2d 720), namely, that the value of the underlying claim was in excess of the settlement. In this case, however, it is clear, as a matter of law, that plaintiffs settlement of his underlying claims was not eventuated by the alleged malpractice. In any event, the amount of the settlement, $1,250,000, exceeds the $700,000 plaintiff previously stipulated to accept in full satisfaction of those underlying claims, plus interest (see Titsworth v Mondo, 95 Misc 2d 233).

We have considered plaintiffs remaining contentions and find them unavailing. Concur — Saxe, J.P., Buckley, Rosenberger, Lerner and Gonzalez, JJ.