We remember some Shakespeare quote about how Cesare’s wife must be more worthy than any other politician/emperor’s wife.  Similarly, here a legal malpractice case is dismissed for failure to file a complaint after a demand had been made.  In Dayan v Darche   2012 NY Slip Op 04312   Decided on June 6, 2012   Appellate Division, Second Department  the Court writes:
 

"To avoid dismissal of the action for failure to serve a complaint after a demand for the complaint has been made pursuant to CPLR 3012(b), a plaintiff must demonstrate both a reasonable excuse for the delay in serving the complaint and a potentially meritorious cause of action (see Perez-Faringer v Heilman, 79 AD3d 837, 838; Gibbons v Court Officers’ Benevolent Assn. of Nassau County, 78 AD3d 654, 654; Pristavec v Galligan, 32 AD3d 834, 834; Maldonado v Suffolk County, 23 AD3d 353, 353-354). Here, the plaintiff failed to proffer any excuse for her lengthy delay in serving the complaint. Furthermore, she failed to establish that she had a potentially meritorious cause of action (see generally Rosner v Paley, 65 NY2d 736, 738; Allen v Potruch, 282 AD2d 484, 484-485; Iannacone v Weidman, 273 AD2d 275, 276-277; Rubinberg v Walker, 252 AD2d 466, 467). Accordingly, the Supreme Court properly granted the defendant’s motion to dismiss the action.

In addition, the plaintiff’s motion for leave to renew her opposition to the defendant’s motion to dismiss the action was properly denied. In support of her motion, the plaintiff proffered her attorney’s affirmation in an attempt to provide a reasonable excuse for the delay in serving the complaint. However, the attorney’s affirmation, which, inter alia, proffered an unsubstantiated excuse of disabling illnesses, was insufficient to warrant a change of the prior determination (see CPLR 2221[e][2]; Cynan Sheetmetal Prods., Inc. v B.R. Fries & Assoc., Inc., 83 AD3d 645, 646; Mattera v Capric, 54 AD3d 827, 828; Borgia v Interboro Gen. Hosp., 90 AD2d 531, affd 59 NY2d 802; Wolfe v Town of Hempstead, Dept. of Parks & Recreation, 75 AD2d 811, 812). Moreover, the plaintiff failed to offer a reasonable justification for failing to present this affirmation in opposition [*2]to the defendant’s original motion (see CPLR 2221[e][3]; Brown Bark I, L.P. v Imperial Dev. & Constr. Corp., 65 AD3d 510, 512; Zarecki & Assoc., LLC v Ross, 50 AD3d 679, 680; Reshevsky v United Water N.Y., Inc., 46 AD3d 532, 533). "

Amalfitano v. Rosenberg  rewrote the law on Deceit and attorneys, and revitalized a statute that was written in 1275.  It is the oldest surviving statute in Anglo-American jurisprudence.  Now, the aftermath for the attorney accused of deceit.

Matter of Rosenberg, M-3654, NYLJ 1202557354417, at *1 (App. Div. 1st, Decided June 5, 2012)

Before: Andrias, J.P., Saxe, Sweeny, Catterson and Acosta, JJ.Decided: June 5, 2012

Jorge Dopico, Chief Counsel, Departmental Disciplinary Committee, New York (Scott D. Smith, of counsel), for petitioner.

Richard M. Maltz, for respondent.

Disciplinary proceedings instituted by the Departmental Disciplinary Committee for the First Judicial Department. Respondent, Armand J. Rosenberg, was admitted to the Bar of the State of New York at a Term of the Appellate Division of the Supreme Court for the First Judicial Department on April 2, 1951.

*2

PER CURIAM

Respondent Armand J. Rosenberg was admitted to the practice of law in the State of New York by the First Judicial Department on April 2, 1951. At all time relevant to this proceeding, respondent’s registered office was within the First Department.

By order dated October 13, 2010 this Court granted the Departmental Disciplinary Committee’s petition for an order giving collateral estoppel effect to an April 2006 decision by the U.S. District Court for the Southern District of New York in the case of

Amalfitano v. Rosenberg

(428 F Supp 2d 196 [SDNY 2006], affd 572 F3d 91 [2d Cir 2009]), in which respondent was found to have engaged in fraudulent conduct, in violation of New York Judiciary Law §487, and imposed treble damages in the amount of $268,245.54. Our order further found that respondent’s conduct violated DR 1-102(A)(4) (conduct involving dishonesty, fraud, deceit or misrepresentation), DR 1-102(A)(5) (conduct prejudicial to the administration of justice), DR 1-102(A)(7) (conduct that adversely reflects on respondent’s fitness as a lawyer), DR 7-102(A)(4) (knowingly using perjured testimony), and DR 7-102(A)(5) (knowingly making a false statement of law or fact), and referred the matter to a Hearing Panel for a sanction hearing. The Committee is now seeking an

*3

order confirming the Hearing Panel’s findings of fact, conclusions of law and recommendation of a one-year suspension.

This matter stems from respondent’s representation of Peter Costalas, who, along with his two brothers, James and John, were members of a family partnership that owned five buildings and twelve restaurants. Peter diverted millions of dollars in partnership finds and mortgaged buildings by use of forged signatures in order to cover losses incurred in connection with his personal trading in stock options. As a result, James and John commenced an action against Peter and his brokers. In August 1993, respondent negotiated an agreement on Peter’s behalf in which Peter, among other things, assigned and transferred his interest in the partnership to John, and in return, was dismissed as a defendant in the litigation.

Thereafter, Vivia Amalfitano, James’ daughter, purchased the partnership’s remaining building and restaurant from John and James. In May 2001, respondent commenced an action in New York County, Supreme Court, naming Vivia and her husband, Gerard Amalfitano, Esq., as defendants, alleging that they defrauded John and James into conveying the partnership’s remaining property and business, and that Peter was still a partner. The action was eventually dismissed during trial. Respondent then unsuccessfully appealed the trial court’s order denying his motion to vacate (see

Costalas v. Amalfitano,

23 AD3d 303 [2005]).

*4

In March 2004, the Amalfitanos commenced the above-mentioned federal action against respondent alleging that respondent’s commencement and prosecution of the state court action against them constituted a violation of Judiciary Law §487.

We agree with the recommendation of the Panel that respondent should be suspended for one year
 

ENGLAND and MIDWEST GEMS, INC., -against- . FELDMAN and FELDMAN LAW GROUP, Defendants.11 Civ. 1396 (CM) UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK; 2011 U.S. Dist. LEXIS 36382; March 28, 2011, is as good a primer in the general and substantive laws of legal malpractice as one might read. There, Judge McMahon tells us:

"Plaintiffs’ First Cause of Action alleges a legal malpractice claim against Defendants. Defendants argue that Plaintiffs have not pleaded facts tending to show that Defendants were negligent or that Defendants caused Plaintiffs harm. Yes, they have."

"Thus, a plaintiff "must . . . establish[] that the attorney failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by a member of the legal community." Stokes v. Lusker, 2009 U.S. Dist. LEXIS 23471, 2009 WL 612336, at *10 (S.D.N.Y. Mar. 4, 2009) (quoting Hatfield v. Herz, 109 F. Supp. 2d 174, 180 (S.D.N.Y. 2000)).

"To [*10] establish the elements of proximate cause and actual damages for a claim of legal malpractice, the plaintiff must show that ‘but for the attorney’s negligence, what would have been a favorable outcome was an unfavorable outcome.’" Stonewell Corp., 678 F. Supp. 2d at 209 (quoting Zarin v. Reid & Priest, 184 A.D.2d 385, 585 N.Y.S.2d 379, 381 (N.Y. App. Div. 1992)). "The failure to establish proximate cause requires dismissal of the legal malpractice action, regardless of whether it is demonstrated that the attorney was negligent." Schwartz v. Olshan Grundman Frome & Rosenzweig, 302 A.D.2d 193, 753 N.Y.S.2d 482, 486 (N.Y. App. Div. 2003).
 

Plaintiffs allege facts tending to show that Feldman’s conduct in the Underlying Lawsuit fell below the standard of care and diligence commonly possessed by other members of the bar. Moreover, Plaintiff’s allege that Feldman’s negligence was the proximate cause of Plaintiffs’ damages—specifically, the loss of certain trademark rights in the "Iceman" mark (Compl. ¶ 47), the inability to assert valid cross-claims and third-party claims against other parties (id. ¶ 40), and the payment of unnecessary legal fees (id. ¶ 47). Plaintiffs’ allegations are sufficient to plead a claim for legal malpractice in New York as they allege facts tending to show attorney negligence by Defendants and that Defendants’ negligence is the proximate cause of the damage Plaintiffs’ suffered.

Under New York law, where a claim for negligence, breach of fiduciary duty, breach of contract, or failure to disclose a conflict of interest are premised on the same facts and seek the identical relief as a claim for legal malpractice, these claims are "redundant and should be dismissed." Nordwind, 584 F.3d at 432-33 (quotation marks omitted); accord Amadasu v. Ngati, 2006 U.S. Dist. LEXIS 19654, 2006 WL 842456, at *9 (E.D.N.Y. Mar. 27, 2006) (dismissing plaintiff’s claims for breach of contract, breach of fiduciary duty, negligent misrepresentation, negligent performance, and gross negligence as duplicative). Plaintiffs’ claims for breach of contract and breach of the implied covenant of good faith and fair dealing arise from the same facts as the legal malpractice claim in and do not allege any distinct damages other than the damages suffered as a result of the legal malpractice. See Financial Services Vehicle Trust v. Saad, 72 A.D.3d 1019, 900 N.Y.S.2d 353, 354 (N.Y. App. Div. 2010); [*14] see also Joyce v. Thompson Wigdor & Gilly LLP, 2008 U.S. Dist. LEXIS 43210, 2008 WL 2329227, at *14 (S.D.N.Y. June 3, 2008) (citing Norwind v. Rowland, 2007 U.S. Dist. LEXIS 75764, 2007 WL 2962350, at *4 (S.D.N.Y. Oct. 10, 2007)) (breach of fiduciary duty and breach of contract).

Accordingly, Counts Two and Three are dismissed as duplicative of the legal malpractice claim."
 

Parties may chart their own litigation course, and often the Court accedes.  Here, however, in West Village Assoc. L.P. v Balber Pickard Battistoni    Maldonado & VanDerTuin, PC    2012 NY Slip Op 31444(U)   May 25, 2012   Sup Ct, New York County   Docket Number: 108423/05  Judge: Saliann Scarpulla, problems arose for the motion maker.  Over the past several years, Courts have tightened the rules/dates for summary judgment motions.  This is an example.

‘It is well settled that “statutory time frames [and] court-ordered time- e frames are not options, they are requirements, to be taken seriously by the parties.” Micsli v. State Farm Mut. Auto. Ins. Co., 3 N.Y.3d 725, 726 (2004) (citing Kihl v. Pfefler, 94 N.Y.2d 118 [ 19991). A Court has no “discretion to entertain nonprejudicial, meritorious post-note of issue motions made after a court-imposed deadline but within the statutory maximum 120-day period in CPLR 3212 (a) . . . .” Glasser v Abramovitz, 37 A.D.3d 194, 194 (1” Dept 2007).‘ See also Brill v. City of New York, 2 N.Y.3d 648, 653 (2004). Therefore, the deadline included in the Scheduling Order – 60 days from the completion of
depositions – is to be strictly followed. See also Corchado v City of New York, 64 AD3d 429 ( 1st Dept 2009). The fact that the parties then entered into the July 25 stipulation, has no effect on
this analysis. The July 25 stipulation states in pertinent part that “[although the time in which Defendants can move for summary judgment . . . may expire as early as July 27, 20 1 1, the undersigned hereby stipulate and agree that the motion for summary judgment can be served on July 29,201 1, by hand and also by electronic transmittal (such as e-mail)  Balber’s affidavit of service indicates that the moving papers were served on July 29, 20 1 1 by priority mail and electronic mail, not by hand and electronic mail as specified in the stipulation. Further, the papers served that day were either incomplete or not final, as an “updated set of motion papers” were served via electronic mail on August 2, 20 1 1. Additionally, the July 29, 2011 notice of motion was never filed with the court, but rather an Amended Notice-of Motion, also dated July 29, 20 I 1 and served via e-mail on September 9, 20 1 1, was filed September 9, 2011. Even where parties are allowed to chart their own course,” they are bound to follow that course, and comply with the
stipulation they executed. Mill Rock Plaza Assocs. v. Lively, 224 A.D.2d 301 (1st Dep’t 1996) (“[strict enforcement of the parties’ stipulation . . . is warranted based upon the principle that the parties to a civil dispute are free to chart their own litigation course). See also Powell v. Kasper, 84 A.D.3d 915, 917 (2d Dep’t 201 1) (summary judgment motion filed beyond deadline set forth in parties’ stipulation denied as untimely). "

In March 2006, plaintiff reported to defendant CSI, Inc., its third-party claims administrator, that an employee had filed a discrimination claim against it. CSI allegedly failed to notify plaintiff’s insurer until February 2008, after plaintiff again brought its employee’s claim to CSI’s attention. In April 2008, plaintiff’s insurer denied coverage for the claim on the basis of late notice. Plaintiff eventually commenced this action against CSI for malpractice, alleging that CSI had negligently failed to give timely notice of the employee’s claim to plaintiff’s insurer. CSI then sought coverage for plaintiff’s malpractice action from its own professional liability carrier, defendant Admiral Insurance Company. Admiral’s policy contained a prior knowledge exclusion, however, and Admiral disclaimed coverage on the ground that CSI knew or should have known that plaintiff would have a claim against it prior to September 5, 2008, the effective date of Admiral’s claims made policy. In an amended complaint, plaintiff sought a declaratory judgment holding that Admiral was obligated to defend and indemnify CSI. After joinder of issue, but prior to any discovery, Admiral moved for summary judgment seeking, among other [*2]things, a declaration that it was not obligated to defend and indemnify CSI against the claim asserted by plaintiff. Supreme Court granted Admiral’s motion and plaintiff appeals [FN1].  

Ulster County v CSI, Inc.   2012 NY Slip Op 04262   Decided on May 31, 2012   Appellate Division, Third Department   "Plaintiff contends that reversal is warranted here because Admiral failed to establish CSI’s subjective knowledge of the relevant facts with proof in admissible form. We agree.

Admiral argues that the allegations in plaintiff’s own amended verified complaint are a sufficient basis to warrant summary judgment. Those allegations are not conclusive evidence, however, when read in light of CSI’s verified answer. Although there is no dispute that plaintiff notified CSI of the discrimination claim in March 2006, CSI answered by denying the allegation that it failed to notify plaintiff’s insurer until February 2008. CSI also denied knowledge or information sufficient to form a belief as to whether plaintiff’s insurer then disclaimed coverage in April 2008.

Contrary to Admiral’s contention that Supreme Court could have relied on unsworn statements and letters from CSI employees submitted in support of the motion, we note that Supreme Court did not do so. In any event, those writings are not acknowledged as required by CPLR 4538 and, thus, do not qualify as evidentiary proof in admissible form (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Nor do they qualify as an admission absent evidence that the employees were authorized to speak on CSI’s behalf (see Gstalder v State of New York, 240 AD2d 541, 542 [1997]; Vozdik v Frederick, 146 AD2d 898, 900 [1989]). As the unsworn writings are inadmissible hearsay, they are insufficient to support the motion for summary judgment (see Matter of Patricia YY. v Albany County Dept. of Social Servs., 238 AD2d 672, 674 [1997]; Welch v Prevost Landowners, 202 AD2d 803, 804 [1994]). "

Whether it is subconscious, whether it is intentional, or whether it is simply ingrained into the minds of attorneys, legal malpractice is handled differently from all other torts.  Yesterday’s decision from the Court of Appeals highlights this difference.

Dombrowski v Bulson  2012 NY Slip Op 04203   Decided on May 31, 2012   Court of Appeals is a case in which both the US District Court for the Western District and the Court of Appeals recognize that the criminal defense attorney failed his client.  The client was convicted of attempted rape and served about 6 years before the indictment was dismissed.
 

"Plaintiff then commenced this action, alleging that he had been damaged as a result of defendant’s attorney malpractice. In relevant part, the complaint alleged that he had been incarcerated from January 17, 2001 until July 19, 2006. He then served a period of postrelease supervision, which was terminated only after his habeas corpus petition was granted.

Supreme Court granted defendant’s motion for summary judgment and dismissed the complaint, finding that plaintiff’s receipt of Social Security disability benefits while incarcerated precluded his claim of pecuniary damages and that damages for nonpecuniary loss were not available in an action for attorney malpractice. The Appellate Division modified and reinstated the portion of the complaint seeking nonpecuniary damages (79 AD3d 1587 [4th Dept 2010]). The Court recognized that nonpecuniary damages were not available for legal malpractice claims where the underlying action was a civil matter, but found that an individual who had been wrongfully convicted as a result of attorney malpractice in a criminal matter could recover compensatory damages for loss of liberty and any other losses that were the direct result of his or her imprisonment (see 79 AD3d at 1590). The Court then granted defendant leave to appeal, certifying the following question for our review: "Was the order of this Court entered December 30, 2010, properly made?" We reverse and answer the certified question in the negative.

In order to recover damages in a legal malpractice action, a plaintiff must establish "that the attorney ‘failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages" (Rudolf v Shayne, [*3]Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007], quoting McCoy v Feinman, 99 NY2d 295, 301 [2002]). For malpractice actions arising from allegations of negligent representation in a criminal matter, the plaintiff must have at least a colorable claim of actual innocence — that the conviction would not have resulted absent the attorney’s negligent representation (see Britt v Legal Aid Socy., 95 NY2d 443, 446-447 [2000]). While the criminal charges at issue remain pending, a plaintiff is precluded, for purposes of a civil action, from asserting innocence (see id., at 448).

New York courts that have been confronted with the issue have generally rejected the claim that a plaintiff in a legal malpractice action is entitled to nonpecuniary damages arising out of representation in civil proceedings (see e.g. Dirito v Stanley, 203 AD2d 903, 904 [4th Dept 1994] [affirming dismissal of damages claim for emotional pain and suffering]; Wolkstein v Morgenstern, 275 AD2d 635, 637 [1st Dept 2000] ["A cause of action for legal malpractice does not afford recovery for any item of damages other than pecuniary loss so there can be no recovery for emotional or psychological injury"]). "

Its a policy decision.  "We see no compelling reason to depart from the established rule limiting recovery [*4]in legal malpractice actions to pecuniary damages. Allowing this type of recovery would have, at best, negative and, at worst, devastating consequences for the criminal justice system. Most significantly, such a ruling could have a chilling effect on the willingness of the already strapped defense bar to represent indigent accused. Further, it would put attorneys in the position of having an incentive not to participate in post-conviction efforts to overturn wrongful convictions. We therefore hold that plaintiff does not have a viable claim for damages and the complaint should be dismissed in its entirety. "

The "frozen out" minority loses a corporate cause of action – contract case, and believes that the attorneys for the majority colluded with the majority to freeze them out.  They believe that the attorneys helped the majority to breach fiduciary duties.  They felt that there was sufficient evidence to support a claim for legal malpractice against the other party’s attorneys.  Their case was dismissed on summary judgment , and in Aranki v Goldman & Assoc., LLP   2012 NY Slip Op 04117   Decided on May 30, 2012   Appellate Division, Second Department  the dismissal was affirmed.
 

"Absent fraud, collusion, malicious acts, or other special circumstances, an attorney is not liable to third parties not in privity or near-privity for harm caused by professional negligence" (Fredriksen v Fredriksen, 30 AD3d 370, 372; see AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 595). Here, the defendants established that they did not collude with the majority members of Millennium Alliance Group, LLC (hereinafter MAG), inter alia, to freeze the plaintiffs out of MAG’s management and profit sharing and force them to surrender, at a reduced price, their minority membership interest in MAG. Thus, the defendants established their entitlement to judgment as a matter of law dismissing the cause of action alleging legal malpractice. In opposition, the plaintiffs failed to raise a triable issue of fact.

The defendants also established their entitlement to judgment as a matter of law dismissing the cause of action alleging breach of fiduciary duty by showing that they did not knowingly induce the majority members of MAG to breach their fiduciary duty to the plaintiffs (see Kaufman v Cohen, 307 AD2d 113, 125). In opposition, the plaintiffs failed to raise a triable issue of fact. "

How does a settlement affect the later legal malpractice claim against the attorney who represented plaintiff in the settlement?  We have seen an erosion of the standard that a legal malpractice claim after settlement is permitted if plaintiff was ‘effectively compelled" to settle because of the departures of the attorney.  In some divorce cases in the 1st Department, an allocution upon settlement that the client was "satisfied" with the attorney’s work has vitiated the later legal malpractice.

In In re: STUART MELTZER, Debtor   Case No. 808-73746-reg, Chapter 7 UNITED STATES BANKRUPTCY COURT FOR THE EASTERN DISTRICT OF NEW YORK 2012 Bankr. LEXIS 2261  
May 18, 2012, we see a discussion the "effectively compelled" principle.

"In order to sustain a malpractice claim, [*18] the client must allege and prove: "(1) that the attorney ‘failed to exercise ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’; and (2) that the attorney’s breach of the duty proximately caused the [client] actual and ascertainable damages." Dempster v. Liotti, 86 A.D.3d 169, 176, 924 N.Y.S.2d 484, 489 (N.Y. App. Div. 2011) (quoting Leder v. Spiegel, 9 N.Y.3d 836, 837, 840 N.Y.S.2d 888, 872 N.E.2d 1194, (N.Y. 2007), cert. denied sub nom. Spiegel v. Rowland, 552 U.S. 1257, 128 S.Ct. 1696, 170 L.Ed.2d 354 (2008)). Causation, which is an element of a malpractice claim, requires a showing by the party alleging malpractice "that he or she would have prevailed in the underlying action. . . . but for the lawyer’s negligence." Pistilli Constr. & Dev. Corp. v. Epstein, Rayhill & Frankini, 84 A.D.3d 913, 921 N.Y.S.2d 887 (N.Y. App. Div. 2011) (quoting Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y. 3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385 (N.Y. 2007)).

Dr. Haywoode alleges, and the Debtor admits, that the Debtor’s failure to file a summons and complaint on behalf of Dr. Haywoode prior to expiration of the applicable statute of limitations [*19] constituted malpractice. HN3An attorney’s admitted failure to commence an action within the applicable time frame provided by statute constitutes negligence as a matter of law. Bergin v. Grace, 39 A.D.3d 1017, 1018, 833 N.Y.S.2d 729, 730 (N.Y. App. Div. 2007) (citing A.H. Harris & Sons, Inc. v. Burke, Cavalier, Lindy and Engel P.C., 202 A.D.2d 929, 930, 610 N.Y.S.2d 888, 889 (N.Y. App. Div. 1994) (other citations omitted)). This is not a case where the client decided to accept a settlement in lieu of facing the risks of trial. Because of the Debtor’s malpractice, Dr. Haywoode was left with no choice but to accept the settlement, having lost the right to maintain any action for damages against the City of New York.

Because the underlying action was settled, and the settlement was upheld, the effect of the settlement on the malpractice claim must be examined. HN4Under New York law, where the underlying action has been terminated by settlement rather than by dismissal or adverse judgment, a claim for legal malpractice survives only if the court finds that the settlement was compelled because of the mistakes of counsel. Cohen v. Lipsig, 92 A.D.2d 536, 459 N.Y.S.2d 98, 99 (N.Y. App. Div. 1983) [*20] (citing Kerson Co. v. Shayne, Dachs, Weiss, Kolbrenner, Levy & Levine, 45 N.Y.2d 730, 732, 408 N.Y.S.2d 475, 380 N.E.2d 302 (N.Y. 1978), and Becker v. Julien, Blitz & Schlesinger, 95 Misc.2d 64, 66-67, 406 N.Y.S.2d 412 (N.Y. Sup. Ct.1977), modified on other grounds, 66 A.D.2d 674, 411 N.Y.S.2d 17 (N.Y. App. Div. 1978)).

As stated in Becker v. Julien, Blitz & Schlesinger, P.C.:
HN5Where the termination (of the underlying action) is by settlement rather than by a dismissal or adverse judgment, malpractice by the attorney is more difficult to establish, but a cause of action can be made out if it is shown that assent by the client to the settlement was compelled because prior misfeasance or nonfeasance by the attorneys left no other recourse. Thus, the court finds itself in agreement with the concurring opinion by Mr. Justice Suozzi in the Kerson case, supra, that the cause of action for legal malpractice must stand or fall on its own merits, with no automatic waiver of a plaintiff’s right to sue for malpractice merely because plaintiff had voluntarily agreed to enter into a stipulation of settlement.
95 Misc.2d at 66, 406 N.Y.S.2d at 414 (citing Kerson Co. v. Shayne, Dachs, Weiss, Kolbrenner, Levy & Levine, 45 N.Y.2d at 732, 408 N.Y.S.2d 475, 380 N.E.2d 302). [*21]

The Debtor and the Trustee urge the Court to find that the settlement and release bar Dr. Haywoode from maintaining a malpractice action against the Debtor. According to the Debtor and the Trustee, Dr. Haywoode accepted the settlement and found it to be reasonable, signed the general release, and made subsequent efforts to enforce the settlement. Based on Dr. Haywoode’s actions, including her ratification of the settlement when she executed the settlement and release, she forfeited her right to maintain the malpractice action. In contrast, Dr. Haywoode argues that she was compelled to accept the settlement due to the Debtor’s malpractice. Because Dr. Haywoode had no other choice but to accept the settlement, she did not waive her right to bring a malpractice action against the Debtor, and the settlement of the personal injury action does not restrict her right to assert a claim for malpractice.

In this case, neither party has accurately characterized the effect the settlement has on Dr. Haywoode’s malpractice claim. The City of New York offered to settle Dr. Haywoode’s claim for $7,750.00. This offer appears to have been made solely based on the City of New York’s view [*22] of the value of the claim, in that it was made before the City became aware that a complaint was not filed prior to expiration of the statute of limitations. Once the Debtor failed to file a timely complaint, the personal injury "claim" was effectively worthless and the City of New York revoked the settlement. The Debtor’s failure to file a timely complaint precluded Dr. Haywoode from having her day in court. As a result of the Debtor’s negligence, the most that Dr. Haywoode could ever collect from the City of New York was $7,750.00. Only an intervening order of a State Court judge preserved the deal. The $7,750.00 settlement, while providing some evidence of the value of the claim, only mitigated the damages caused by the Debtor’s negligence. The Debtor recognized that the settlement served to mitigate any damages he caused because he agreed to be responsible for up to $7,750.00 in the event the City of New York reneged. It was in the best interests of Dr. Haywoode as well as the Debtor to seek enforcement of the City’s agreement."