Phyllis Leder v Robert Horowitz

Leder v Horowitz 2005 NY Slip Op 09075 [23 AD3d 626] November 28, 2005 Appellate Division, Second Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, January 18, 2006

Phyllis Leder, Respondent-Appellant,
v
Robert Horowitz et al., Appellants-Respondents.

—[*1]

In an action, inter alia, to recover damages for legal malpractice, the defendants appeal, as limited by their brief, from so much of an order of the Supreme Court, Nassau County (Joseph, J.), dated November 3, 2004, as denied those branches of their motion which were for summary judgment dismissing the complaint insofar as asserted against the defendants Robert Horowitz, Steven B. Tannenbaum, and Horowitz, Tannenbaum & Silver, P.C., and the plaintiff cross-appeals, as limited by her brief, from so much of same order as denied her cross motion for summary judgment on the issue of liability.

Ordered that the appeal by the defendant Vickie R. Silver is dismissed, without costs or disbursements, as she is not aggrieved by the portions of the order appealed from (see CPLR 5511); and it is further,

Ordered that the order is affirmed insofar as reviewed, without costs or disbursements.

Contrary to the contention of the defendants Robert Horowitz, Steven Tannenbaum, and Horowitz, Tannenbaum & Silver, P.C. (hereinafter the defendants), the doctrine of collateral estoppel does not apply to this case because the issue of whether the plaintiff consented to settle the underlying action to recover damages for personal injuries for the sum of $50,000 was never adjudicated (see generally Kaufman v Eli Lilly & Co., 65 NY2d 449 [1985]; Augustine v Sugrue, 8 AD3d 517 [2004]; [*2]Jimenez v Shippy Realty Corp., 213 AD2d 377 [1995]). Additionally, the plaintiff properly pleaded, in the alternative, that she did not consent to the settlement, and that if she had consented to the settlement, she was essentially compelled to settle the underlying action due to the defendants' negligence (see CPLR 3014).

The defendants, as the movants, failed to submit evidence sufficient to establish their entitlement to judgment as a matter of law (see Alvarez v Prospect Hosp., 68 NY2d 320 [1986]). The plaintiff likewise failed to meet her initial burden on her cross motion (id.). Even if the affidavit of the plaintiff's expert was admissible, it was insufficient to establish the elements of legal malpractice as a matter of law (see Amona v Orange & Rockland Util., Inc., 17 AD3d 386 [2005]). Under the circumstances, a triable issue of fact exists as to whether the plaintiff consented to the settlement and whether, but for the defendants' alleged negligence, the plaintiff would have obtained a larger recovery in the underlying action (see generally Keeley v Tracy, 301 AD2d 501 [2003]; Aversa v Safran, 303 AD2d 700 [2003]; Ippolito v McCormack, Damiani, Lowe & Mellon, 265 AD2d 303 [1999]; Zasso v Maher, 226 AD2d 366 [1996]). Accordingly, the Supreme Court properly denied the defendants' motion for summary judgment dismissing the complaint insofar as asserted against them and properly denied the plaintiff's cross motion for summary judgment on the issue of liability. Schmidt, J.P., Adams, Luciano and Covello, JJ., concur.