Katz v. Essner

Appellate Division of the Supreme Court of New York

Katz v. Essner

136 A.D.3d 575, 25 N.Y.S.3d 211

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 23, 2016

Docket296 154865/13

StatusPublished

This text of 136 A.D.3d 575 (Katz v. Essner) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Katz v. Essner, 136 A.D.3d 575, 25 N.Y.S.3d 211 (N.Y. Ct. App. 2016).

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Opinion

Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered November 20, 2014, which, insofar as appealed from as limited by the briefs, granted defendants’ motion to dismiss the causes of action for legal malpractice and for violations of Judiciary Law § 487, unanimously affirmed, without costs.

Even if defendants’ alleged acts or omissions rose to the level *576 of negligence, plaintiff’s allegations in support of his legal malpractice claim and Judiciary Law claims remain conclusory, speculative and contradicted by the documentary evidence submitted on the motion to dismiss (see Schloss v Steinberg, 100 AD3d 476 [1st Dept 2012]). Plaintiff failed to show that he was actually injured by defendants’ alleged neglect, or meet the “case within a case” requirement, demonstrating that “but for” defendants’ conduct he would have obtained a better settlement (see Warshaw Burstein Cohen Schlesinger & Kuh, LLP v Longmire, 106 AD3d 536 [1st Dept 2013], lv dismissed 21 NY3d 1059 [2013] [internal quotation marks omitted]).

Furthermore, in response to questions from defendant Essner, plaintiff stated on the record of the stipulation of settlement that he was satisfied with the services that defendants provided. Under the circumstances presented, including that plaintiff is an attorney, the motion court properly dismissed the complaint (see Harvey v Greenberg, 82 AD3d 683 [1st Dept 2011]).

Concur — Tom, J.P., Andrias, Moskowitz and Richter, JJ.

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Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered November 20, 2014, which, insofar as appealed from as limited by the briefs, granted defendants’ motion to dismiss the causes of action for legal malpractice and for violations of Judiciary Law § 487, unanimously affirmed, without costs.

Even if defendants’ alleged acts or omissions rose to the level *576 of negligence, plaintiff’s allegations in support of his legal malpractice claim and Judiciary Law claims remain conclusory, speculative and contradicted by the documentary evidence submitted on the motion to dismiss (see Schloss v Steinberg, 100 AD3d 476 [1st Dept 2012]). Plaintiff failed to show that he was actually injured by defendants’ alleged neglect, or meet the “case within a case” requirement, demonstrating that “but for” defendants’ conduct he would have obtained a better settlement (see Warshaw Burstein Cohen Schlesinger & Kuh, LLP v Longmire, 106 AD3d 536 [1st Dept 2013], lv dismissed 21 NY3d 1059 [2013] [internal quotation marks omitted]).

Furthermore, in response to questions from defendant Essner, plaintiff stated on the record of the stipulation of settlement that he was satisfied with the services that defendants provided. Under the circumstances presented, including that plaintiff is an attorney, the motion court properly dismissed the complaint (see Harvey v Greenberg, 82 AD3d 683 [1st Dept 2011]).

Concur — Tom, J.P., Andrias, Moskowitz and Richter, JJ.

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Bluebook (online)

136 A.D.3d 575, 25 N.Y.S.3d 211, Counsel Stack Legal Research, https://law.counselstack.com/opinion/katz-v-essner-nyappdiv-2016.

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