Claude Mayo Constr. Co., Inc. v Barclay Damon LLP 2025 NY Slip Op 03897 Decided on June 27, 2025
Appellate Division, Fourth Department chooses to duck this question. Since JL 487 is a NY statute, and requires that deceit take place during a pending litigation, the question of whether litigation in Federal Court meets the criteria remains open. Here, after a settlement, Plaintiff fails to convince the Court and the Appellate Division that it was “effectively compelled” to settle because of counsel’s mistakes.

“” ‘[T]o recover damages for legal malpractice, a [client] must prove (1) that the [law firm] failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community, (2) proximate cause, (3) damages, and (4) that the [client] would have been successful in the underlying action had the [law firm] exercised due care’ ” (Chamberlain, D’Amanda, Oppenheimer & Greenfield, LLP v Wilson, 136 AD3d 1326, 1327 [4th Dept 2016], lv dismissed 28 NY3d 942 [2016]; see Harvey v Handelman, Witkowicz & Levitsky, LLP, 130 AD3d 1439, 1441 [4th Dept 2015]). The fact that an action results in a settlement “does not, per [*2]se, preclude a legal malpractice action” (Chamberlain, 136 AD3d at 1328). Where there is a settlement, however, “the focus becomes whether settlement of the action was effectively compelled by the mistakes of counsel” (Carbone v Brenizer, 148 AD3d 1806, 1806 [4th Dept 2017] [internal quotation marks omitted]).

We conclude that defendant’s evidentiary submissions on its motion conclusively established that plaintiff has no cause of action for legal malpractice (see generally Rovello, 40 NY2d at 636). Defendant submitted evidence of a favorable settlement in the underlying suit, and that evidence “flatly contradicts” plaintiff’s conclusory allegations to the effect that the settlement was compelled by the mistakes of counsel (Olszewski v Waters of Orchard Park, 303 AD2d 995, 995 [4th Dept 2003] [internal quotation marks omitted]; see generally Niagara County, 82 AD3d at 1599).

Finally, even assuming, arguendo, that Judiciary Law § 487 is applicable where, as here, the alleged misconduct takes place in connection with an action in federal court (cf. Delaney v HC2, Inc., 761 F Supp 3d 641, 664 [SD NY 2025]; SGM Holdings LLC v Andrews, 743 F Supp 3d 545, 584 [SD NY 2024]), we conclude that the complaint lacks the particularity required for a Judiciary Law § 487 cause of action inasmuch as it contains no facts to support plaintiff’s conclusory allegations that defendant willfully delayed the proceedings or engaged in a chronic pattern of deceptive conduct (see Pieroni v Phillips Lytle LLP, 140 AD3d 1707, 1710 [4th Dept 2016], lv denied 28 NY3d 901 [2016]; cf. Joseph v Fensterman, 204 AD3d 766, 767 [2d Dept 2022]).”