In Santiago v Fellows, Epstein & Hymowitz, P.C. ; 2009 NY Slip Op 07393 ; Decided on October 13, 2009 ;Appellate Division, Second Department we see a rather stark and short decision from the Appellate Division after dueling summary judgment motions are decided in defendant’s favor.  There is not a lot of factual background, but plaintiff aparently thought that a $1 million offer was made, and defendant denied that any offer was made.  If no offer was made, then how can there be malpractice?
 

From the decision:  "In support of that branch of their cross motion which was for summary judgment, the defendants established, prima facie, that during their representation of the plaintiff in the underlying action, Selective Insurance Company (hereinafter Selective), the insurer of two of the four defendants in the underlying action, did not offer to settle the matter on behalf of its insureds for the $1,000,000 policy limit. The defendants submitted an affidavit from the individual defendant Robert L. Fellows, who categorically denied that Selective ever made a $1,000,000 settlement offer to the defendants or to the plaintiff during [*2]the defendants’ representation of the plaintiff. Rather, he explained that by letter dated August 6, 2002, from Selective to Travelers Insurance Company (hereinafter Travelers), the insurer of one of the defendants in the underlying action, Selective "tendered its $1 million single limit policy to Travelers. Selective requested that Travelers assume the handling and defense of the action. On August 15, 2002, a mere nine days after Selective’s letter tender to Travelers of its policy limits, Selective retracted the tender." According to Fellows, it was not until June 2003 that the plaintiff directed him to settle the underlying action with Selective for a total sum of $1,000,000. However, Selective never made such an offer, and thus, Fellows could not possibly have acted on the plaintiff’s behalf to settle the case, and his failure to do so cannot be deemed malpractice."