Pirog v. Ingber

203 A.D.2d 348, 609 N.Y.S.2d 675, 1994 N.Y. App. Div. LEXIS 3727

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: April 11, 1994
• Status: Published

Opinion

—In an action to recover damages for legal malpractice, the plaintiffs appeal from an order of the Supreme Court, Orange County (Miller, J.), dated February 7, 1992, which granted the defendants’ motion for summary judgment dismissing the complaint and denied their cross motion to amend the complaint.

Ordered that the order is affirmed, with costs.

The Supreme Court acted properly in granting the defendants’ motion for summary judgment and denying the appellants’ cross motion. The appellants’ legal malpractice claim is barred by the defendants’ successful prosecution of a prior action to recover fees for the same legal services which the appellants presently allege were negligently performed (see, e.g., Grace & Co. v Tunstead, Schechter & Torre, 186 AD2d 15; Chisholm-Ryder Co. v Sommer & Sommer, 78 AD2d 143). Indeed, any uncertainty with respect to this issue is dispelled by the decision of the Appellate Division, Third Department, which affirmed the judgment in the prior fee action and specifically concluded that the appellants failed to establish the existence of any triable issue of fact with respect to the claim for legal fees (see, Ingber v Pirog, 176 AD2d 1163). Sullivan, J. P., Joy, Hart and Krausman, JJ., concur.