Levy v Fischman

[*1] Levy v Fischman 2014 NY Slip Op 51749(U) Decided on December 15, 2014 Appellate Term, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on December 15, 2014
SUPREME COURT, APPELLATE TERM, FIRST DEPARTMENT
PRESENT: Lowe, III, P.J., Hunter, Jr., J.
570293/13

Susan P. Levy and Stuart D. Levy,

against

Herbert William Fischman, Esq. and Herbert William Fischman, P.C., Defendants-Appellants.

Defendants, as limited by their briefs, appeal from that portion of an order of the Civil Court of the City of New York, New York County (Andrea Masley, J.), dated December 27, 2012, which denied their motion for summary judgment dismissing plaintiffs' legal malpractice cause of action.

Per Curiam.

Order (Andrea Masley, J.), dated December 27, 2012, insofar as appealed from, modified to grant defendants partial summary judgment dismissing so much of plaintiffs' cause of action for legal malpractice as relates to defendants' alleged failure to pursue arbitration in connection with the first-named plaintiff's claims for first-party no-fault benefits; as modified, order affirmed, without costs.

This legal malpractice action arises from defendants' representation of plaintiffs in connection with personal injury and insurance claims relating to an automobile accident. Insofar as relevant to this appeal, plaintiffs allege that defendants, a law firm and its principal, agreed to "handle all medical bills and payments, including No-fault insurance and personal health insurance claims that related" to the underlying accident.

Defendants demonstrated entitlement to partial summary judgment dismissing so much of plaintiffs' legal malpractice claim as alleged a failure by defendants to pursue arbitration of the denial of plaintiff Susan Levy's claim for first-party no-fault benefits. Defendants demonstrated that their decision to forgo arbitration represented a reasonable litigation strategy (see Rodriguez v. Lipsig, Shapey, Manus & Moverman, P.C., 81 AD3d 551 [2011]), explaining that had the arbitration been pursued, any negative finding made therein as to Susan's injury and/or condition could have negatively affected plaintiffs' then-pending personal injury action (see Clemens v Apple, 65 NY2d 746 [1985]). "Attorneys are free to select among reasonable courses of action in prosecuting clients' cases without thereby exposing themselves to liability for malpractice" (Iocovello v Weingrad v Weingrad, 4 AD3d 208 [2004]).

However, defendants' submissions failed to eliminate all triable issues as to plaintiffs' other allegations of malpractice (see Alvarez v Prospect Hosp., 68 NY2d 320, 324 [1986]). [*2]Among the unresolved issues are whether defendants agreed to "handle" all medical bills and insurance claims related to the underlying motor vehicle accident and, if so, whether they exercised ordinary and reasonable care in doing so.

THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.

I concurI concur

Decision Date: December 15, 2014