Plaintiff hears that a settlement offer had been made, and knows that his attorney did not convey a settlement offer. We all know that it can be malpractice for an attorney to fail to convey a settlement offer, so long as Plaintiff would have taken the offer. So, is this legal malpractice?
Not here, in Guerrera v Zysk 2014 NY Slip Op 05156 Decided on July 9, 2014 Appellate Division, Second Department. The reason is that there was no admissible testimony about the settlement offer in the motion for summary judgment. Whether the offeror would not testify, or for some other reason, there was only hearsay on the issue. Hearsay alone is insufficient to defeat summary judgment.
"Here, the defendant established his prima facie entitlement to judgment as a matter of law dismissing the plaintiff’s fifth cause of action to recover damages for legal malpractice based on the defendant’s alleged failure to convey a settlement offer to the plaintiff during the 2003 Action. [*2]In support of the motion, the defendant submitted a transcript of his deposition, wherein he testified that he was never informed as to the existence of a settlement offer in the 2003 Action, and a transcript of the plaintiff’s deposition, wherein the plaintiff testified that he had no personal knowledge of the existence of a settlement offer and had heard about it through statements made to him by others.
In opposition, the plaintiff failed to raise a triable issue of fact, as the only evidence submitted to show that a settlement offer was communicated to the defendant consisted of hearsay statements. Such evidence, standing alone, is insufficient to defeat the defendant’s motion for summary judgment on this cause of action (see Mauskopf v 1528 Owners Corp., 102 AD3d 930, 931-932; Mallen v Farmingdale Lanes, LLC, 89 AD3d 996; Rodriguez v Sixth President, Inc., 4 AD3d 406). Accordingly, the Supreme Court should have granted that branch of the defendant’s motion which was for summary judgment dismissing the fifth cause of action."