Defendants made an offer to settle the case.  Plaintiff’s attorneys did not communicate the offer to Plaintiff.  Plaintiff never got the chance to consider it.  Summary judgment granted shortly thereafter.  Problem for the attorneys?  Not in Drasche v Edelman & Edelman, P.C.  2021 NY Slip Op 30429(U) February 12, 2021 Supreme Court, New York County Docket Number: 153713/2020 Judge: David Benjamin Cohen.

“On or about December 21, 2015, plaintiff was injured at 2323 Broadway in Manhattan, which premises were owned or leased by Banana  Republic, LLC (“Banana Republic”) and/or The Gap. Doc. 1 at par. 6. Plaintiff thereafter retained the firm to undertake an investigation of
the incident and to commence an action on her behalf against Banana Republic and/or The Gap. Id.”

” On or about February 11, 2016, the firm commenced an action on plaintiff’s behalf as against Banana Republic and The Gap (“the underlying action”). Doc. 1 at par. 10; Doc. 7. Plaintiff was deposed in the underlying action on December 13, 2016, during which proceeding
she was represented by Engle. Id. at par. 12. Following plaintiff’s deposition in the underlying action, defendants allegedly made a settlement offer to Engle, who in tum advised Edelman, an
“owner or shareholder” of the firm, about the offer. Id. at 7, 14. However, defendants did not advise plaintiff that a settlement offer had been made.”

“Banana Republic and The Gap thereafter moved for summary judgment in the underlying action. Id. at par. 17. By order dated July 6, 2018, this Court (Edmead, J.) granted the motion and the complaint was dismissed. Id. at pars. 17-18; Doc. 9. By order dated May 9, 2019, the Appellate Division, First Department affirmed Justice Edmead’s order of dismissal.”

” Although plaintiff does not specifically allege that defendants “failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession” (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442), she does allege that defendants were “negligent and [departed] from acceptable practice for attorneys engaged in the practice oflaw in the State of New York.” Doc. 1 at par. 20. Viewing this claim in a light most favorable to plaintiff, this Court finds that it adequately sets forth the standard of care from which defendants allegedly deviated. However, plaintiff fails to allege that she would not have sustained damages “but for” the
defendants’ alleged negligence (see Rudolfv Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d at 442). As noted above, plaintiff claims that the defendants’ failure to advise her about the settlement offer “deprived [her] of the opportunity to settle her lawsuit and thereby obtain a monetary recovery for her injuries, pain and suffering, and medical bills.” Id. at par. 20 (emphasis added). However, she does not claim that she would have accepted the settlement offer had she
known about it. Thus, her legal malpractice claim must be dismissed (see Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303 AD2d 561, 562 [2d Dept 2003] [legal malpractice claim dismissed where plaintiffs failed to demonstrate that, but for defendants’ alleged negligence in failing to advise them that a settlement offer had been made, they would have accepted the offer and would not have sustained any damages]; Cannistra v O’Connor, McGuinness, Conte, Doyle, Oleson & Collins, 286 AD2d 314, 315-316 [2d Dept 2001] [plaintiffs failed to establish that, but for defendants’ alleged negligence in failing to advise them of a deadline for accepting a settlement offer, they would have accepted it]). Moreover, since “mere speculation of a loss resulting from an attorney’s alleged omissions … is insufficient to sustain a claim” for legal malpractice” (Gallet,
Dreyer & Berkey, LLP v Basile, 141AD3d405, 405-406 [1st Dept 2016] [internal quotation marks omitted]), plaintiffs claim that she may have accepted a settlement offer had she known about it must fail for this reason as well. “