Suzuki v Greenberg 2023 NY Slip Op 05455 Decided on October 26, 2023
Appellate Division, First Department is the extremely rare successful Judiciary Law 487 claim. The AD noted that in the First Department a single egregious act can be sufficient, and that no “chronic pattern” is required as it is in the Second Department.

“Defendant, an attorney, represented plaintiff’s former husband in the matrimonial action underlying this action. During the course of the matrimonial proceedings, defendant knowingly failed to inform the court that in accordance with neglect and custody proceedings held in Kings County Family Court, plaintiff had been awarded primary physical custody of the child of the marriage. Defendant also prepared an affidavit for his client, falsely stating that the client had never been party to a neglect proceeding and asserting that the client was the child’s custodial parent. In addition, defendant submitted a final judgment of divorce awarding primary physical custody of the child to his client on the basis of stipulated agreements between plaintiff and the client even though those agreements had been signed three years before the Kings County proceedings. Defendant then presented an order to show cause to hold plaintiff in contempt of court for not complying with the custody provisions in the judgment of divorce.

Plaintiff established her entitlement to summary judgment by submitting evidence that defendant had intentionally failed to apprise the court of the Kings County custody order, thus affirmatively misrepresenting the existence of adverse information relevant to the proceedings (see Schindler v Issler & Schrage, P.C., 262 AD2d 226, 227 [1st Dept 1999], lv denied 94 NY2d 859 [1999]). This evidence was sufficient to establish “egregious conduct” under Judiciary Law § 487 (see id.). Despite defendant’s position otherwise, a plaintiff need not demonstrate a chronic pattern of delinquency to recover on a Judiciary Law § 487 action; on the contrary, a single egregious act, such as the one presented here, is sufficient (see e.g. Mazel 315 W. 35th LLC v 315 W. 35th Assoc. LLC, 120 AD3d 1106, 1107 [1st Dept 2014]).

Furthermore, the court properly awarded treble damages despite the fact that plaintiff had already been awarded attorney’s fees in the matrimonial action. The matrimonial court found that plaintiff had been damaged by defendant’s deceitful conduct to the extent she incurred attorney’s fees to address and rectify the fraudulent order procured through that conduct and to defend against the contempt motion, but the matrimonial court could not and did not entertain a claim for treble damages, which Judiciary Law § 487 authorizes by way of a separate legal action (see Melcher v Greenberg Traurig LLP, 135 AD3d 547, 554 [1st Dept 2016]). In any event, the purpose of awarding [*2]treble damages for a violation of Judiciary Law § 487 is to punish a lawyer for his misconduct and to deter him from future misconduct, rather than to compensate a plaintiff for her injury (see Jean v Chinitz, 163 AD3d 497, 499 [1st Dept 2018]).

We reject defendant’s argument that his conduct merely constituted zealous representation of his client’s interests (see Mazel 315 W. 35th, 120 AD3d at 1107). Defendant had an ethical duty as an officer of the court to uphold the integrity of the court and not to subvert its truth-seeking process for the improper benefit of his client (see Amalfitano v Rosenberg, 12 NY3d 8, 14 [2009]).”

Salus v Berke 2023 NY Slip Op 06183 Decided on November 30, 2023 Appellate Division, Third Department is a case on the correct application of Judiciary Law 487 claims that an attorney took too much of a fee in a contingent representation.

“Plaintiff Gregory J. Salus is the beneficiary of the residuary clause of the will of his mother (hereinafter decedent), and plaintiff Robert Russo is the executor of the estates of decedent and her husband. Salus hired defendants to represent him in two matters to settle the estates of decedent and her husband. The retainer agreement provided that defendants would receive one third of “any recovery by suit, settlement or otherwise” stemming from their representation of Salus in the matters regarding the estates. Defendants represented Salus in negotiations between Russo and Salus’ stepsisters to settle a disagreement over the allocation of an award received from decedent’s husband’s medical malpractice settlement. The negotiations resulted in Salus directly receiving $370,000 as well as $100,000 as the beneficiary of the residuary of decedent’s estate. As such, defendants included this $100,000 — in addition to the $370,000 — when calculating their legal fee.”

“In support of their motion, defendants submitted plaintiffs’ complaint, attached to which, as relevant here, is decedent’s will, a January 2020 amended decree from the Kings County Surrogate’s Court, the retainer agreement between Salus and defendants and a March 2020 settlement agreement. The January 2020 amended decree, which predates defendants’ representation of Salus, demonstrates that as part of the settlement of a medical malpractice/wrongful death action on behalf of decedent’s husband, decedent’s estate was to be paid $100,000 for decedent’s distributive share. Decedent’s will provides, in relevant part, that the proceeds that resulted from the medical malpractice claim were to be distributed to Salus’ stepsisters and that any residuary property be distributed to Salus. Thus, under the January 2020 amended decree, Salus would not receive anything from decedent’s husband’s medical malpractice/wrongful death action. The retainer agreement, signed in February 2020, specifies that defendants’ representation of Salus was for legal services constituting intervention and representation in “two pending matters in Surrogates Court, Kings County concerning” decedent’s estate and the estate of decedent’s husband. The agreement, which was attached to the complaint, provided that the legal fee would be computed at “33⅓% . . . of any recovery by suit, settlement or otherwise.” Finally, the March 2020 settlement agreement specifies that its purpose was to compromise the cause of action for wrongful death of decedent’s husband and to settle the accounts of decedent’s husband’s estate as well as decedent’s estate. This settlement agreement provided that, in relevant part, Salus’ stepsisters “waive all of their rights to any assets or any portion of the assets of the estate of [decedent].” Because of this waiver, $100,000 of the medical malpractice/wrongful death settlement which would have previously been distributed to Salus’ stepsisters would instead ultimately fall to the residuary of decedent’s estate, of which Salus was the sole beneficiary. Under the settlement agreement, Salus was also to receive $370,000 directly. Defendants calculated their legal fees from the sum total of these amounts, $470,000.

Although Supreme Court was correct that plaintiffs sufficiently pleaded the breach of contract cause of action, it erred by not considering defendants’ proffer, specifically, the retainer agreement, which conclusively establishes a defense as a matter of law. Indeed, the language in the retainer agreement is clear that defendants’ legal fee would be computed at “33⅓% . . . of any recovery by suit, settlement or otherwise.” By their involvement in the March 2020 settlement, Salus was awarded not only $370,000, but also the $100,000 that, prior to defendants’ representation of Salus, would have been distributed to Salus’ [*3]stepsisters. As such, defendants submitted undisputed documentary evidence that conclusively establishes a defense as a matter of law (see Matter of Lewis v Dagostino, 199 AD3d at 1222-1223; Jenkins v Jenkins, 145 AD3d 1231, 1235-1236 [3d Dept 2016]). In light of this determination, plaintiffs’ fifth cause of action alleging a violation under Judiciary Law § 487 must also be dismissed inasmuch as the documentary evidence establishes that defendants were entitled to the full amount received under the retainer agreement. Accordingly, defendants’ proffer conclusively establishes that they did not “intentionally deceive[ ] the court or a party during the pendency of a judicial proceeding” (A.M.P. v Benjamin, 201 AD3d 50, 57 [3d Dept 2021] [internal quotation marks and citations omitted]; see Judiciary Law § 487 [1]).”

Huli Ma v Hui Chen 2023 NY Slip Op 06031 Decided on November 22, 2023
Appellate Division, Second Department is a Connecticut and New York legal malpractice claim that the attorney was also a business partner with Plaintiff.

“In an action, inter alia, to recover damages for breach of fiduciary duty, legal malpractice, fraud, and conversion, the plaintiff appeals, and the defendant Hui Chen cross-appeals, from an order of the Supreme Court, Queens County (Robert J. McDonald, J.), entered April 21, 2021. The order, insofar as appealed from, granted those branches of the motion of the defendant Hui Chen which were pursuant to CPLR 3211(a) to dismiss the first and fifth causes of action insofar as asserted against him and so much of the second, third, fourth, and sixth causes of action insofar as asserted against him as sought to recover damages relating to a real estate transaction involving certain property located in Flushing. The order, insofar as cross-appealed from, denied those branches of that defendant’s motion which were pursuant to CPLR 3211(a) to dismiss so much of the second, third, fourth, and sixth causes of action insofar as asserted against him as sought to recover damages relating to a real estate transaction involving certain properties located in Stamford, Connecticut, and to impose sanctions and for an award of costs and attorneys’ fees pursuant to 22 NYCRR 130-1.1.

ORDERED that the order is modified, on the law, by deleting the provision thereof granting that branch of the motion of the defendant Hui Chen which was pursuant to CPLR 3211(a) to dismiss the first cause of action insofar as asserted against him, and substituting therefor a provision denying that branch of the motion; as so modified, the order is affirmed insofar as appealed and cross-appealed from, without costs or disbursements.”

“With respect to the Stamford transaction, the amended complaint alleged that in or about September 2016, the defendant persuaded the plaintiff to purchase six condominium units in Stamford, Connecticut. The plaintiff alleged that she later learned that the condominium units had been “flipped” by the defendant and his business partner to sell to the plaintiff at a price over and above the market price. The plaintiff alleged that the Stamford transaction netted the defendant and his business partner “approximately $139,000 profit all at [her] expense.”

With respect to the Flushing transaction, the amended complaint alleged that in or about June 2017, the defendant told the plaintiff that he had several investors who were investing in a property in Flushing (hereinafter the Flushing property). The defendant told the plaintiff that he and the investors would each invest $2,000,000 to purchase the Flushing property. The defendant later told the plaintiff that $500,000 of his pledged investment was “tied up in China,” and he needed to borrow $500,000 from the plaintiff to avoid “losing a substantial . . . down payment.” The plaintiff agreed to lend the defendant the $500,000, and the defendant presented the plaintiff with a “Redemption Agreement” reflecting the loan, which increased the loan amount to $666,360. The amended complaint alleged that the defendant failed to repay the $666,360 as required by the redemption agreement.”

“”A release is a contract, and its construction is governed by contract law” (Schiller v Guthrie, 102 AD3d 852, 853 [internal quotation marks omitted]; see Cardinal Holdings, Ltd. v Indotronix Intl. Corp., 73 AD3d 960, 962). “Generally, a valid release constitutes a complete bar to an action on a claim that is the subject of the release” (Nucci v Nucci, 118 AD3d 762, 763; see Burnside 711, LLC v Amerada Hess Corp., 175 AD3d 557, 559). “If the language of a release is clear and unambiguous, the signing of a release is a jural act binding on the parties” (Nucci v Nucci, 118 AD3d at 763; see Booth v 3669 Delaware, 92 NY2d 934, 935; Mangini v McClurg, 24 NY2d 556, 563). “Where the release is unambiguous, a court may not look to extrinsic evidence to [*3]determine the parties’ intent” (Burgos v New York Presbyt. Hosp., 155 AD3d at 600). A defendant bears the initial burden of establishing that he or she has been released from any claims (see Centro Empresarial Cempresa S.A. v América Móvil, S.A.B. de C.V., 17 NY3d 269, 276).

The Supreme Court erred in granting that branch of the defendant’s motion which was to dismiss the first cause of action, alleging breach of the redemption agreement, insofar as asserted against him. It cannot be determined as a matter of law whether the release was intended to discharge the defendant from a cause of action that both relates to the Flushing property and seeks to enforce the redemption agreement (see Galster Rd. Props., LLC v Penske Truck Leasing Co., L.P., 195 AD3d 1502, 1502-1503; Mazzurco v PII Sam, LLC, 153 AD3d 1341, 1342; Desiderio v Geico Gen. Ins. Co., 107 AD3d 662, 663).”

Santaro v Finocchio 2023 NY Slip Op 05836 Decided on November 17, 2023 Appellate Division, Fourth Department illustrates the inherent bias towards attorneys that courts have always taken. Not forgetting that attorneys write and legislate the rules, which are then applied and considered by attorneys who are judging other attorneys, it is no surprise that the rules favor attorneys. The social policy is to limit legal malpractice cases so that every litigation is not followed by a pair of legal malpractice claims.

That being said, in this case there was limited to no damages cognizable. The Appellate Division wrote:

“Memorandum: In this legal malpractice action, plaintiff seeks damages for the alleged negligence of defendants in their representation of him in a proceeding pursuant to Family Court Act article 4. As alleged in the complaint in this action, defendants prepared and timely filed objections to the Support Magistrate’s order in the Family Court proceeding on August 19, 2019. Although defendants possessed an affidavit of mailing sworn to on August 19, 2019, detailing service of the objections that same day, defendants did not file the affidavit of mailing until two days later, on August 21, 2019.

Family Court sua sponte dismissed the objections based upon defendants’ failure to strictly comply with Family Court Act § 439 (e) by failing to file proof of service at the same time as the objections. However, on appeal, this Court reversed, reinstated the objections, and remitted the matter to Family Court for further proceedings on the objections, holding that “[s]trict adherence to this deadline is not required” and that, under the circumstances, dismissal of the objections was not warranted (Matter of Sigourney v Santaro, 192 AD3d 1482, 1483 [4th Dept 2021] [internal quotation marks omitted]). In so holding, this Court noted that there was no dispute that the two-day delay did not result in any prejudice inasmuch as the petitioner in the Family Court proceeding was served with a copy of the objections within the statutory time period (see id.).”

“Although Family Court may properly dismiss objections for failure to comply with Family Court Act § 439 (e) under some circumstances (see generally Matter of Minka v Minka, 219 AD2d 810, 810-811 [4th Dept 1995]), strict compliance with the statute is not always required (see Sigourney, 192 AD3d at 1483). Here, the complaint alleged that defendants timely filed the objections, possessed an affidavit of mailing detailing proper service on the day of filing, and delayed just two days in filing proof of service, and the complaint also alleged that opposing counsel filed a rebuttal. Contrary to plaintiff’s contention, the allegations in the complaint do not support even an inference that any prejudice was caused by the two-day delay, nor do they support any inference that such delay would warrant dismissal of the objections by Family Court. Consequently, we conclude that plaintiff’s allegations, even if accepted as true, fail to allege a prima facie case of legal malpractice (see CPLR 3211 [a] [7]; Leder, 9 NY3d at 837).”

Roedelbronn v Borstein & Sheinbaum LLC 2023 NY Slip Op 05670 Decided on November 09, 2023 Appellate Division, First Department demonstrates the interplay between appeals (and other findings) in the underlying case and success in a subsequent legal malpractice case. Here, the court initially found that the continuing representation doctrine successfully tolled the statute of limitations for legal malpractice. It went on to hold that a subsequent appeal from the matrimonial judgment undercut the legal malpractice claims.

“Plaintiff’s contention that the continuous representation doctrine tolled the statute of limitations has merit given that the attorneys who represented plaintiff in the divorce proceeding when the alleged malpractice occurred, continued to represent plaintiff in the same proceeding, “albeit while at different law firms” (Boesky v Levine, 193 AD3d 403, 405 [1st Dept 2021]). Nevertheless, plaintiff’s argument with respect to her malpractice claim is unavailing.

On appeal, plaintiff limits her claim to the value and percentage award of the Agrifos business assets based upon the alleged malpractice of Borstein & Sheinbaum at the 2015 hearing, i.e., that the Special Referee and Supreme Court ignored the justifications for the 40% award in two other assets by awarding her only 10% of the value of Agrifos, her former husband’s fertilizer business. However, this Court previously affirmed the 10% award of the Agrifos assets, applying the well-settled rule that marital assets do not have to be divided equally (Cotton v Roedelbronn, 170 AD3d, 595, 595-596 [1st Dept 2019], citing Arvantides v Arvantides, 64 NY2d 1033, 1034 [1985]). Plaintiff’s attempt to relitigate this issue is unavailing and the conclusory allegations do not adequately state a claim for malpractice (see Garr Silpe, P.C. v Gorman, 192 AD3d 633 [1st Dept 2021]; Olsen v Smith, 187 AD3d 675, 675 [1st Dept 2020]; Sitomer v Goldweber Epstein, LLP, 139 AD3d 642, 643 [1st Dept 2016], lv denied 28 NY3d 908 [2016]).THIS CONSTITUTES THE DECISION AND ORDER”

In Mrkulic v Peters 2023 NY Slip Op 33930(U) November 2, 2023
Supreme Court, Kings County Docket Number: Index No. 505025/2020
Judge Debra Silber points out a vast number of errors that took place before she was assigned to the case. She rules that none can be fixed by her.

“In Motion Sequence #6, defendants move to reargue the court’s last decision in
this case, issued on August 8, 2023, for motion sequence #5, which granted plaintiff’s
motion to reargue the court’s decision on motion sequence #3, and, upon reargument,
reinstated the prior order, which found defendants in default. The court denies
defendants leave to reargue.”

“The court notes that there are errors in some of the prior orders issued under the
2012 index number, as well as under this index number, but they are not this court’s
errors, and this court cannot fix them. For example, in the personal injury case brought
in 2012, one defendant (Carlisle) moved to vacate his default and dismiss the case
against him on June 21, 2019, after the plaintiff’s attorney (defendant in this action) had
successfully obtained the attachment of Carlisle’s bank account and the garnishment of
his salary. The court denied his motion, by order dated July 23, 2019, as “moot”, citing
an order dated January 18, 2018, which he states dismissed the entire case, and then
the court lifted the restraints on Carlisle’s bank account and returned his garnished funds. But the order of January 18, 2018 did not dismiss the case, as the case had been
disposed by the entry of judgment in 2013, it restored it.
The file is filled with subsequent activity, all of which is for one reason or another,
improperly carried out. For example, plaintiff’s prior attorney stipulated, after the judgment was entered, to vacate the judgment against the defendant Zen Palate and allow Zen Palate and Theresa Hwa to answer. It also changed the name of Zen Palate Union Square LLC to Platinum Z, Inc. d/b/a Zen Palate, but the caption was never actually amended, as the stipulation was not “so-ordered,” and the judgment was not actually vacated. Nor was the case restored so a preliminary conference could be held. Nonetheless, these defendants filed an answer to the complaint. Then, another
defendant, Mr. Lindo, made a motion to vacate his default, and a stipulation was filed
discontinuing the action against him. Then, defendants here, in 2017, realized that the
stipulation permitting the two defendants to answer had not restored the case to active
status, as it was post-judgment, and defendant Peters made a motion for this relief. It
was granted, and the January 18, 2018 order restored it and set it down for a preliminary conference. Unfortunately, this order also vacated the entire judgment. It did not dismiss the case.

By a subsequent order dated May 17, 2018, however, the judge in the Intake part
did dismiss the case, for plaintiff’s not appearing for a preliminary conference. Instead of just the case against Zen Palate and Ms. Hwa being dismissed, because the entire
judgment had been vacated, that order dismissed the entire case and plaintiff had to move to restore the case. He did so, which was granted by the January 18, 2018 order.

Then, Carlisle made his motion, by order to show cause, to release the funds
frozen by his bank and have his garnished wages returned to him. He averred that he
had not been served with the summons and complaint. The affidavit of service states he was served by “nail and mail” service. As to the merits, he said that the criminal case had been dismissed as he was not the perpetrator of the assault. Plaintiff made a motion shortly after, to release Carlisle’s bank funds to plaintiff. Nobody seemed to be aware that the case had been dismissed on May 17, 2018.

On August 8, 2019, defendant herein, on behalf of plaintiff, made a motion to reinstate the default judgment, averring that it was only supposed to have been vacated as
against Zen Palate.

On October 2, 2019, plaintiff’s motion for the funds was denied as “moot.”
Plaintiff’s motion to reinstate the default judgment was granted, on a default judgment
order form which directed that Mr. Carlisle be removed from the judgment.
To be clear, instead of granting Carlisle’s motion to vacate his default and directing
him to answer the complaint, or scheduling a traverse hearing on the issue of service, as requested in his motion, the court issued an order removing Mr. Carlisle from the
judgment, but made no provision to continue the action against him, or Zen Palate and
Ms. Hwa. The fact that the case had been dismissed as against Zen Palate and Theresa
Hwa is not mentioned. The fact that it had been discontinued as against Edbert Lindo is
not mentioned. The order provides that the judgment was reinstated against all
defendants except Carlisle. The judgment had never been entered against Ms. Hwa, and it was not reinstated against her. On 3/30/23, the judgment was still on the judgment roll in the County Clerk’s office as against all original judgment debtors, with a notation “default judgment does not apply to Benjamin Carlisle.”

In this action, the defendants’ default which resulted in the March 1, 2022 order
was not placed on a default judgment order form sending the matter for an inquest on
damages, but instead an order was erroneously issued that directed judgment be entered against this defendant, an attorney, for the full amount of the personal injury case judgment entered in the 2012 case, with interest from the date of the tort. The County Clerk has entered this judgment. The order should have referred the plaintiff to an inquest to determine the plaintiff’s damages against the defendant attorney. The complaint in this action, verified by counsel on February 2, 2020, misrepresents that the judgment in the 2012 personal injury case had been vacated, which was somehow defendant’s fault, and thus plaintiff was entitled to have the full amount of his judgment against the tortfeasors entered against his attorney. However, the court did not vacate the judgment, but it did seemingly vacate it against Mr. Carlisle on October 2, 2019. Further, the complaint clearly states that defendant was hired in 2017 to enforce the judgment. He could not be responsible for interest from 2012. Counsel for plaintiff (the defendant herein) should have moved to reargue the October 2, 2019 order, so the case against Mr. Carlisle could be reinstated and he could be given time to answer the complaint. Now, plaintiff has a judgment against all of the defendants in the other action, which includes the mis-named restaurant, but not Ms. Hwa or Mr. Carlisle, who may or may not have been the tortfeasor, and a judgment against defendants herein, for the same sum, which is a duplicate recovery if the judgments are both successfully enforced.

As none of the errors were made by the undersigned, this court is powerless to
correct them. Leave to reargue is denied.”

A commonly recurring theme in legal malpractice is the application of the privity requirement. That requirement basically (always with some exceptions) prohibits legal malpractice claims against an attorney with whom the Plaintiff does not have privity of contract. One common subset arises when the attorney represents an entity, and where the individual members or shareholders have a dispute and thought the attorney represented them as well.

Blank v Petrosyants 2023 NY Slip Op 33932(U) November 1, 2023 Supreme Court, Kings County Docket Number: Index No. 517568/19 Judge: Leon Ruchelsman is an example.

“In 2013 the plaintiffs invested sums of money with the defendants· to open a restaurant and catering hall in Queens County. The plaintiffs allege they paid money and entered into a shareholder agreement. Pursuant to the agreement the defendant
Zhan Petrosyants was a sixty percent owner. and the plaintiffs :Shubaderov and Egorov were each twenty percent owners. The lawsuit alleges the defendants diverted the funds to other sources depriving them of any return upon their investments.”

” On January 30:, 2014 the defendant Zhan Petrosyants entered into a retainer agreement with Akiva Ofshtein. There is no basis to question the authenticity of the agreement and thus serves as prima facie evidence that only Petrosyants hired Ofshtein. Further, the terms bf the agreement, and plaintiff’s questions regarding some of its curious provisions, 90 not raise any questions whether the plaintiffs were also included as parties to the agreement. Thus, there is no agreement wherein Ofshtein.
agreed to represent the plaintiffs.”

” The only evidence supporting the existence of any attorney client relationship is
the subjective beliefs of the plaintiffs. Those beliefs fail to raise any questions about the existence of such relationship. Therefore, the motion seeking summary judgement dismissing all claims against Ofshtein is granted.”

In Guliyev v Banilov & Assoc., P.C. 2023 NY Slip Op 05493 Decided on November 1, 2023 Appellate Division, Second Department the clients sue in legal malpractice and say that the underlying MVA case was settled without their consent. They lose the legal malpractice on collateral estoppel grounds as well as for failure to show that they could have won the underlying case anyway.

“The plaintiff retained the defendants Banilov & Associates, P.C., and Nick Banilov (hereinafter together the Banilov defendants) to represent him in connection with an action to recover damages for personal injuries allegedly sustained as a result of a motor vehicle accident (hereinafter the underlying action). The defendant Harlan Wittenstein was of counsel to the Banilov defendants, assisting with the underlying action. Wittenstein negotiated a settlement with the defendants in the underlying action and conveyed to them that the plaintiff had accepted that settlement. The plaintiff thereafter terminated the Banilov defendants’ services and retained another law firm. The defendants in the underlying action moved to compel enforcement of the settlement. The plaintiff opposed, asserting that he did not authorize Wittenstein or the Banilov defendants to accept the settlement. Following a framed-issued hearing, the Supreme Court granted the motion to compel enforcement, concluding that Wittenstein and the Banilov defendants had the authority to settle the underlying action.

The plaintiff subsequently commenced this action against Wittenstein and the Banilov defendants to recover damages for legal malpractice, breach of fiduciary duty, and violation of Judiciary Law § 487. Wittenstein and the Banilov defendants separately moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them. In an order dated May 17, 2021, the Supreme Court granted the separate motions. The plaintiff appeals.”

“”The plaintiff is required to plead actual, ascertainable damages that resulted from the attorneys’ negligence” (Bua v Purcell & Ingrao, P.C., 99 AD3d at 847; see Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C., 205 AD3d at 716). “Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative” (Bua v Purcell & Ingrao, P.C., 99 AD3d at 848 [citations omitted]; see Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C., 205 AD3d at 716). Here, the complaint failed to plead specific factual allegations demonstrating that, but for the defendants’ alleged negligence, there would have been a more favorable outcome in the underlying action or that the plaintiff would not have incurred any damages (see Williams v Silverstone, 215 AD3d 787, 789; Katsoris v Bodnar & Milone, LLP, 186 AD3d 1504, 1506). In addition, the plaintiff is precluded by the doctrine of collateral estoppel from relitigating the issue of whether the defendants had the authority to settle the underlying action (see CPLR 3211[a][5]; Reid v Reid, 198 AD3d 993, 994; Shifer v Shifer, 165 AD3d 721, 723).”