Legal Malpractice

Failure to Communicate a Settlement Offer and Legal Malpractice

By (Andrew Lavoott Bluestone)

In "Boglia,  v  Greenberg, et al., ; SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT;2009 NY Slip Op 5278; 63 A.D.3d 973; 882 N.Y.S.2d 215; 2009 N.Y. App. Div. LEXIS 5183  the court writes:

"The client retained the attorneys to represent her in a matrimonial action. After terminating the attorneys' representation, the client settled the underlying action and received a settlement in the amount of $ 200,000. Thereafter, the client sued the attorneys alleging, inter alia, that they negligently advised her of her rights to equitable distribution of the residence, and failed to communicate an offer of settlement to her in the amount of $ 250,000. She also sought to recover legal fees already paid to the attorneys."

"The defendants met their burden of establishing entitlement to judgment as a matter of law by demonstrating that the plaintiff would be unable to prove that, but for the defendants' alleged negligent advice regarding her rights to equitable distribution, she would have prevailed in the underlying action had it proceeded to trial. The plaintiff, in opposition, failed to raise a triable issue of fact. Accordingly, the Supreme Court properly granted that branch of the defendants' cross motion which was for summary judgment dismissing the first cause of action, alleging legal malpractice based upon the defendants' alleged negligent advice regarding her rights to equitable distribution of the [***218] residence, and properly denied that branch of the plaintiff's motion which was for summary judgment on that cause of action (see Oberkirch v Charles G. Eichinger, P.C., 35 AD3d 558, 559, 827 N.Y.S.2d 192).

However, the Supreme Court should have denied that branch of the defendants' cross motion which was for summary judgment dismissing the second cause of action, alleging legal malpractice based upon their alleged failure to convey her former husband's $ 250,000 settlement offer to her, as triable issues of fact exist regarding whether the defendants failed to convey the settlement offer to the plaintiff and whether the plaintiff would have accepted that offer (cf. Bauza v Livington, 40 AD3d "

Full post as published by New York Attorney Malpractice Blog on September 08, 2009 (boomark / email).