Silva v. Worby, Groner, Edelman, LLP

54 A.D.3d 634, 864 N.Y.S.2d 23

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: September 25, 2008
• Status: Published

Opinion

Order, Supreme Court, Bronx County (Kenneth L. Thompson, Jr., J.), entered on or about October 15, 2007, which granted defendants’ motion for summary judgment dismissing the complaint, unanimously reversed, on the law, without costs, the motion denied and the complaint reinstated.

The conflicting deposition testimony and affidavits submitted by the parties present a material issue of fact whether plaintiff instructed defendants to attempt to settle the case underlying this legal malpractice action for $1.25 million (see Longhorn v K. Solo Serv. Corp., 302 AD2d 307 [2003]). As the record indicates that defense counsel in the underlying case was authorized and prepared to settle that case for the requested amount, a finding that plaintiff so instructed defendants would show a settlement opportunity lost through their malpractice (see Masterson v Clark, 243 AD2d 411 [1997]). Concur—Tom, J.P., Mazzarelli, Friedman, Williams and Moskowitz, JJ.