At least in the Second Department, the principal that a claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by mistakes of counsel. In the First Department, a line of cases has arisen which undercuts that principal. The Second Department recently re-affirmed the holding of Tortura v. Sullivan Papain Block, McGrath & Cannavo PC in Schiff v Sallah Law Firm, P.C. 2015 NY Slip Op 03820 Decided on May 6, 2015 Appellate Division, Second Department.
“”In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442, quoting McCoy v Feinman, 99 NY2d 295, 301-302; see Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756). “A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel” (Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083; see Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d at 757; Steven L. Levitt & Assoc., P.C. v Balkin, 54 AD3d 403).
Here, the Sallah defendants established, prima facie, that the law firm, Donald R. Sallah, Dean J. Sallah, and Patrick M. Kerr did not fail to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that settlement of the underlying divorce action was not effectively compelled by any mistakes on their part (see Boone v Bender, 74 AD3d 1111, 1113; Luniewksi v Zeitlin, 188 AD2d 642). Further, the Sallah defendants established, prima facie, that the defendant Francine J. Zecca could not be held liable for professional malpractice because she was not an attorney.
The plaintiff, in opposition, failed to raise a triable issue of fact. Contrary to the plaintiff’s contention, the Supreme Court’s determination was not premature. Although the plaintiff opposed summary judgment based, in part, on the defendant’s failure to produce certain discovery, that discovery was requested or ordered after the filing of the defendants’ motion for summary judgment, which imposed an automatic stay of discovery (see CPLR 3214[b]). Furthermore, the plaintiff failed to demonstrate that further discovery may have led to relevant evidence, or that facts essential to oppose summary judgment were exclusively within the defendants’ knowledge and control (see South Shore Neurologic Assoc., P.C. v Mobile Health Mgt. Servs., Inc., 121 AD3d 881; Buchinger v Jazz Leasing Corp., 95 AD3d 1053, 1053-1054).”