In Guliyev v Banilov & Assoc., P.C. 2023 NY Slip Op 05493 Decided on November 1, 2023 Appellate Division, Second Department the clients sue in legal malpractice and say that the underlying MVA case was settled without their consent. They lose the legal malpractice on collateral estoppel grounds as well as for failure to show that they could have won the underlying case anyway.

“The plaintiff retained the defendants Banilov & Associates, P.C., and Nick Banilov (hereinafter together the Banilov defendants) to represent him in connection with an action to recover damages for personal injuries allegedly sustained as a result of a motor vehicle accident (hereinafter the underlying action). The defendant Harlan Wittenstein was of counsel to the Banilov defendants, assisting with the underlying action. Wittenstein negotiated a settlement with the defendants in the underlying action and conveyed to them that the plaintiff had accepted that settlement. The plaintiff thereafter terminated the Banilov defendants’ services and retained another law firm. The defendants in the underlying action moved to compel enforcement of the settlement. The plaintiff opposed, asserting that he did not authorize Wittenstein or the Banilov defendants to accept the settlement. Following a framed-issued hearing, the Supreme Court granted the motion to compel enforcement, concluding that Wittenstein and the Banilov defendants had the authority to settle the underlying action.

The plaintiff subsequently commenced this action against Wittenstein and the Banilov defendants to recover damages for legal malpractice, breach of fiduciary duty, and violation of Judiciary Law § 487. Wittenstein and the Banilov defendants separately moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them. In an order dated May 17, 2021, the Supreme Court granted the separate motions. The plaintiff appeals.”

“”The plaintiff is required to plead actual, ascertainable damages that resulted from the attorneys’ negligence” (Bua v Purcell & Ingrao, P.C., 99 AD3d at 847; see Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C., 205 AD3d at 716). “Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action, and dismissal is warranted where the allegations in the complaint are merely conclusory and speculative” (Bua v Purcell & Ingrao, P.C., 99 AD3d at 848 [citations omitted]; see Marinelli v Sullivan Papain Block McGrath & Cannavo, P.C., 205 AD3d at 716). Here, the complaint failed to plead specific factual allegations demonstrating that, but for the defendants’ alleged negligence, there would have been a more favorable outcome in the underlying action or that the plaintiff would not have incurred any damages (see Williams v Silverstone, 215 AD3d 787, 789; Katsoris v Bodnar & Milone, LLP, 186 AD3d 1504, 1506). In addition, the plaintiff is precluded by the doctrine of collateral estoppel from relitigating the issue of whether the defendants had the authority to settle the underlying action (see CPLR 3211[a][5]; Reid v Reid, 198 AD3d 993, 994; Shifer v Shifer, 165 AD3d 721, 723).”