Drasche v Edelman & Edelman 2022 NY Slip Op 00044 Decided on January 06, 2022 Appellate Division, First Department is a “got an offer but did not communicate it” claim which was dismissed, in part for the failure to prove that the claim was made and in part for failing to allege that the client would have settled had the claim been communicated.
“The underlying defendants ultimately prevailed on a motion for summary judgment, which was affirmed by this Court in Turso-Drasche v Banana Republic, LLC (172 AD3d 485 [1st Dept 2019]). Plaintiff then commenced the instant action against the Edelman firm and two of its attorneys, asserting three causes of action, each of which sought to recover for alleged “damages” arising from defendants’ failure to “advise” her of a purported settlement offer by the underlying defendants. The first cause of action sounded in negligence/malpractice, the second for breach of contract, and the third for violation of rule 1.4 of the New York Rules of Professional Conduct (22 NYCRR 1200.0).
We find that Supreme Court correctly dismissed the complaint in its entirety. Plaintiff’s claim for legal malpractice is based upon a vague and conclusory assertion that after her deposition, counsel for the defendants in the underlying action made a settlement offer to her attorney, and that her attorney did not relay the offer to her. Regardless, the complaint fails to allege that plaintiff would have accepted the offer if she had known of it (see Rubenstein & Rubenstein v Papadakos, 31 AD2d 615, 615 [1st Dept 1968], affd 25 NY2d 751 ).
Further, plaintiff fails to allege that, but for defendants’ alleged negligence, she would have accepted the settlement offer and would not have sustained any damages (see Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303 AD2d 561, 562 [2d Dept 2003], lv denied 100 NY2d 511 ; Cannistra v O’Connor, McGuinness, Conte, Doyle, Oleson & Collins, 286 AD2d 314, 316 [2d Dept 2001], lv denied 97 NY2d 611 ).
To the extent that plaintiff bases her legal malpractice claim on rule 1.4(a)(1)(iii) of the Rules of Professional Conduct, an allegation of legal malpractice based on a violation of the disciplinary rules does not, without other allegations supporting the cause of action[*2], support a malpractice claim (Cohen v Kachroo, 115 AD3d 512, 513 [1st Dept 2014]).”