Summary
holding damages could not be construed as actual and ascertainable where the "claimed damages in the underlying action were, at the time of settlement, subject to potential dismissal."
Summary of this case from Jackson v. Reed Smith LLP (In re Jackson)Opinion
2013-01-24
BELLINSON LAW, LLC, Plaintiff–Defendant–Respondent, v. Robert IANNUCCI, Defendant–Plaintiff–Appellant.
Thompson Hine LLP, New York (Douglas E. Grover of counsel), for appellant. Furman Kornfeld & Brennan LLP, New York (A. Michael Furman of counsel), for respondent.
Thompson Hine LLP, New York (Douglas E. Grover of counsel), for appellant. Furman Kornfeld & Brennan LLP, New York (A. Michael Furman of counsel), for respondent.
TOM, J.P., SAXE, MOSKOWITZ, ABDUS–SALAAM, JJ.
Order, Supreme Court, New York County (Judith J. Gische, J.), entered February 15, 2012, which, to the extent appealed from as limited by the briefs, granted plaintiff's motion for summary judgment dismissing defendant's counterclaims for fraud and legal malpractice, unanimously affirmed, with costs.
In this action by plaintiff law firm seeking legal fees owed by defendant pursuant to a retainer agreement, plaintiff made a prima facie showing of entitlement to judgment as a matter of law. In opposition, defendant failed to raise triable issues of fact ( see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718 [1980] ). With respect to his counterclaim for legal malpractice, defendant failed to raise a triable issue as to whether plaintiff's alleged negligence proximately caused his damages and whether the claimed damages were actual and ascertainable ( see Wo Yee Hing Realty, Corp. v. Stern, 99 A.D.3d 58, 62–63, 949 N.Y.S.2d 50 [1st Dept.2012];see also Reibman v. Senie, 302 A.D.2d 290, 290, 756 N.Y.S.2d 164 [1st Dept.2003] ). The record does not support defendant's contention that he was forced to settle the underlying action because plaintiff was incompetent and unprepared on the eve of trial. Indeed, even if plaintiff was negligent, there is evidence in the record indicating that defendant had other options besides settling the case ( see Fusco v. Fauci, 299 A.D.2d 263, 749 N.Y.S.2d 715 [1st Dept.2002] ). Further, defendant's claimed damages could not be construed as actual and ascertainable, given that the bulk of the claimed damages in the underlying action were, at the time of settlement, subject to potential dismissal ( see generally Markard v. Bloom, 4 A.D.3d 128, 129, 770 N.Y.S.2d 869 [1st Dept.2004],lv. denied2 N.Y.3d 706, 780 N.Y.S.2d 311, 812 N.E.2d 1261 [2004] ).
With respect to defendant's fraud-based counterclaim, defendant failed to offer proof of injury arising from plaintiff's allegedly misleading claims of federal court trial experience ( see generally Small v. Lorillard Tobacco Co., 94 N.Y.2d 43, 57, 698 N.Y.S.2d 615, 720 N.E.2d 892 [1999] ).