The “But for” zone in legal malpractice is where most battles take place.  Whether there was a departure is rarely the tipping point. Moore v Kronick 2020 NY Slip Op 05742 [187 AD3d 892] October 14, 2020
Appellate Division, Second Department shows how events in the underlying case can kill a legal malpractice claim.

“The plaintiff and her brother, Eugene Moore (hereinafter Eugene), owned a two-family home as tenants in common. In 2009, Eugene commenced a partition action against the plaintiff. The defendant Arnold Kronick represented the plaintiff in the partition action. In 2012, the plaintiff entered into a stipulation of settlement with Eugene, whereby the property would be sold and they would divide the proceeds of the sale.

Thereafter, the plaintiff commenced this action to recover damages for legal malpractice, alleging that the defendants Arnold Kronick and Arnold Kronick, L.P. (hereinafter together the defendants), had negligently represented her in the partition action. Specifically, the plaintiff argued that the defendants were negligent in failing to assert the affirmative defense of constructive trust. The defendants moved for summary judgment dismissing the complaint insofar as asserted against them, and their motion was denied.

In 2017, the plaintiff sought, among other things, to vacate the stipulation of settlement in the partition action, arguing that a constructive trust should be imposed upon the property. The Supreme Court denied the plaintiff’s motion, finding that the plaintiff was not entitled to a constructive trust. Shortly after entry of that order, the defendants moved for leave to renew their prior motion for summary judgment dismissing the complaint insofar as asserted against them, arguing that the court’s determination in the partition action that the plaintiff was not entitled to a constructive trust had a collateral estoppel effect on the legal malpractice action. In the order appealed from, the Supreme Court granted the defendants’ motion for leave to renew their prior motion for summary judgment and, upon renewal, granted the prior motion. We affirm.

To apply the doctrine of collateral estoppel, two requirements must be satisfied: “There must be an identity of issue which has necessarily been decided in the prior action and is decisive of the present action, and there must have been a full and fair opportunity to contest the decision now said to be controlling” (Buechel v Bain, 97 NY2d 295, 303-304 [2001]). “The party seeking the benefit of collateral estoppel has the burden of demonstrating the identity of the issues in the present litigation and the prior determination, whereas the party attempting to defeat its application has the burden of establishing the absence of a full and fair opportunity to litigate the issue in the prior action” (Kaufman v Eli Lilly & Co., 65 NY2d 449, 456 [1985]). Here, the plaintiff failed to meet her burden of establishing that she did not have a full and fair opportunity to litigate the constructive trust issue in the partition action. Accordingly, we agree with the Supreme Court determination that the defendants’ defense of the doctrine of collateral estoppel defeats the plaintiff’s legal malpractice claim. Scheinkman, P.J., Rivera, Balkin and Iannacci, JJ., concur.”