Sometimes, Supreme Court of the State of New York acts like an appellate court in legal malpractice cases.  In Pasquale v Heppt 2013 NY Slip Op 31560(U) July 15, 2013
Supreme Court, New York County Docket Number: 112890/2011 Judge: Doris Ling-Cohan we see one such example.  Note that plaintiff argues that a decision of Queens County shows that the attorney committed legal malpractice, and Judge Ling-Cohan comes to the completely opposite conclusion, acting, in essence as an appellate court.

"This action arises out of the defendant’s legal representation of plaintiff Lillian De Pasquale (Lillian) in an underlying action involving the disputed estate of her late husband, Joseph De Pasquale (Joseph), as well as the legal representation of plaintiff Vincent De Pasquale (Vincent), son of Lillian, for employment and contract claims in a separate matter.

Lillian was the executrix of Joseph’s estate. In 2005, Daniel De Pasquale (Daniel), brother of Joseph, commenced an action against Lillian in Supreme Court, Queens County (the Estate Action). In March 2009, Lillian agreed to settle the Estate Action with Daniel, and the settlement was entered into on the record before the court. In April 2009, Lillian and Vincent engaged the legal services of defendant, and allegedly paid him a retainer of $5,000 each, for a total of $10,000. Lillian allegedly retained defendant, a f t e r a settlement was reached in the Estate Action, which was entered on the record, to complete the settlement of the Estate Action, while Vincent allegedly
retained defendant to research and litigate claims relating to employment and contractual issues in a separate matter.

After judgment was entered, the Honorable Orin R Kitzes,Justice of the Supreme Court, Queens County, denied Lillian’s order to show cause to vacate the settlement, and stated in his decision that the proper procedure was to bring a plenary action. Lillian alleges that she had to pay post-judgment statutory interest on the judgment, as well as statutory poundage to the Marshal, as a result of defendant’s act of filing an order to show cause, rather than filing a plenary action. Lillian alleges claims of legal malpractice and breach of contract.

In regard to Lillian’s claim for legal malpractice,the documentary evidence presented by defendant establishes that filing an order to show cause instead of a plenary action was not the proximate cause of Lillian’s damages. Regardless of whether defendant filed a plenary action or not, the settlement payment was due June 8, 2009. After payment was not made on that date, as stated by Justice Kitzes, the plaintiff in the Estate Action engaged the services of the Marshal after taking "various actions to compel [Lillian] to appear for depositions to determine her assets and for those assets to not be dissipated” (Furman affirmation in support of motion to dismiss, exhibit E). Thus,
it was not the filing of an order to show cause versus a plenary action, which caused the poundage owed to the Marshal, rather, it was Lillian’s failure to timely pay the settlement amount, and
the actions of Lillian afterwards, which caused the poundage and interest to accrue. It is noted that"[s]tipulations of settlement are favored by the courts and not lightly cast
aside … This is all the more so in the case of ‘open court’ stipulations … within CPLR 2104, where strict enforcement not only serves the interest of efficient dispute resolution but also is essential to the management of court calendars and integrity of the litigation process.  Only where there is a cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation.. .". Hallock v. State of New York, 64 NY2d 224, 230 (1984) (citations omitted). Thus, Lillian’s claim for legal malpractice is dismissed."
Only where there is cause sufficient