Ofman v. Katz
Opinion of the Court
In a legal malpractice action, a plaintiff must show that the defendant attorney “failed to exercise the ordinary reasonable
Applying these standards to the instant case, the Supreme Court erred in granting that branch of the defendant’s motion which was to dismiss the cause of action sounding in legal malpractice. The plaintiff alleged in his complaint, among other things, that the defendant failed to successfully negotiate or fully litigate the issue of whether a previously existing stipulation of settlement in one matter was intended to relieve him of liability for the claims interposed against him in another matter. The plaintiff also alleged that, but for this failure, he would have obtained either a general release or a favorable ruling that the stipulation of settlement constituted a general release, and been able to successfully defend the claims interposed against him in the second matter on the basis of that release. Accordingly, the complaint states a legally cognizable cause of action against the defendant sounding in legal malpractice (see Thompsen v Baier, 84 AD3d at 1063; Guayara v Harry I. Katz, P.C., 83 AD3d at 663). Moreover, although the defendant initially raised the affirmative defense of release in this action, and appealed from the denial of a motion to dismiss the complaint based upon this defense, this Court previously held that there were issues of fact as to which disputes the stipulation of settlement was intended to settle (see Ofman v Campos, 12 AD3d 581 [2004]), and the documents submitted do not conclusively establish that this particular outstanding issue of fact was ever dispositively determined (see generally Teitelhaum Holdings v
The Supreme Court, however, properly granted that branch of the defendant’s motion which was pursuant to CPLR 3211 (a) (7) to dismiss the cause of action to recover damages for breach of contract. This cause of action was duplicative of the legal malpractice cause of action since it arose from the same facts, and did not seek distinct and different damages (see Alizio v Feldman, 82 AD3d at 805; Conklin v Owen, 72 AD3d 1006, 1007 [2010]; Sitar v Sitar, 50 AD3d 667, 670 [2008]; Town of Wallkill v Rosenstein, 40 AD3d 972, 974 [2007]). Mastro, J.P, Eng, Belen and Hall, JJ., concur.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.