        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1239
CA 16-00690
PRESENT: PERADOTTO, J.P., CARNI, CURRAN, TROUTMAN, AND SCUDDER, JJ.


PEGGY HALL, PLAINTIFF-RESPONDENT-APPELLANT,

                    V                             MEMORANDUM AND ORDER

SCHRADER, ISRAELY, DELUCA & WATERS, LLP,
DEFENDANT-APPELLANT-RESPONDENT.


WILSON, ELSER, MOSKOWITZ, EDELMAN & DICKER, LLP, ALBANY (PETER A.
LAURICELLA OF COUNSEL), FOR DEFENDANT-APPELLANT-RESPONDENT.

TREVETT, CRISTO, SALZER & ANDOLINA, P.C., ROCHESTER (DAVID L. MURPHY
OF COUNSEL), FOR PLAINTIFF-RESPONDENT-APPELLANT.


     Appeal and cross appeal from an order of the Supreme Court,
Monroe County (Ann Marie Taddeo, J.), entered March 7, 2016. The
order denied the motion of defendant for summary judgment and denied
the cross motion of plaintiff for summary judgment.

     It is hereby ORDERED that the order so appealed from is
unanimously affirmed without costs.

     Memorandum: Plaintiff commenced this legal malpractice action
alleging that defendant did not properly advise her during settlement
negotiations of an action it commenced on her behalf. Plaintiff
retained defendant to pursue benefits under the Employee Retirement
Income Security Act of 1974 ([ERISA] 29 USC § 1001 et seq.) for her,
and defendant’s efforts resulted in a $60,000 settlement offer soon
after the action was commenced. Plaintiff agreed to the amount of the
settlement but wanted defendant to negotiate further in an attempt to
secure terms that would allow plaintiff to pursue other benefits under
a related ERISA benefit plan. After 18 months of negotiations,
opposing counsel withdrew the settlement offer and successfully moved
to dismiss the action. Following the commencement of this action and
completion of discovery, defendant moved for summary judgment
dismissing the complaint, and plaintiff cross-moved for summary
judgment. Supreme Court properly denied the motion and cross motion.

     Addressing first plaintiff’s cross appeal, we note that, in an
action to recover damages for legal malpractice, a plaintiff must
demonstrate that the “attorney failed to exercise ‘the ordinary
reasonable skill and knowledge’ commonly possessed by a member of the
legal profession” (Darby & Darby v VSI Intl., 95 NY2d 308, 313), and
that “the attorney’s breach of this duty proximately caused plaintiff
to sustain actual and ascertainable damages” (Rudolf v Shayne, Dachs,
                                 -2-                          1239
                                                         CA 16-00690

Stanisci, Corker & Sauer, 8 NY3d 438, 442; see Chamberlain, D’Amanda,
Oppenheimer & Greenfield, LLP v Wilson, 136 AD3d 1326, 1327, lv
dismissed 28 NY3d 942). We conclude that plaintiff’s cross motion was
properly denied, inasmuch as she failed to establish that defendant’s
alleged malpractice proximately caused her damages. In support of her
cross motion, plaintiff submitted no evidence that she would have
accepted the $60,000 offer if she had been properly advised, i.e., she
failed to establish that, but for defendant’s deviation from the
standard of care, she would not have been harmed (see Miazga v Assaf,
136 AD3d 1131, 1134-1135, lv dismissed 27 NY3d 1078; Kluczka v Lecci,
63 AD3d 796, 797-798).

      We conclude with respect to defendant’s appeal that its motion
also was properly denied. To establish its compliance with an
attorney’s duty to keep his or her client reasonably informed, and to
provide enough information to allow plaintiff to reasonably
participate in settlement negotiations, defendant cited only to a
single letter that was sent to plaintiff as a cover sheet with the
original settlement offer in the underlying litigation. The letter
stated that settlement “could be a quick way to resolve this case,
without the need for spending a lot of money on a claim that the Plan
may prevail on (despite our best efforts).” Even assuming, arguendo,
that a reasonable factfinder could ultimately conclude that the letter
satisfied defendant’s duty to “exercise the ordinary reasonable skill
and knowledge commonly possessed by a member of the legal profession”
(Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 845, lv denied 20 NY3d
857; see Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303
AD2d 561, 562, lv denied 100 NY2d 511), plaintiff raised a triable
issue of fact by submitting an expert affirmation asserting, inter
alia, that defendant failed to provide plaintiff with adequate advice
(see generally Zuckerman v City of New York, 49 NY2d 557, 562).
Defendant also failed to establish as a matter of law that its conduct
did not proximately cause plaintiff’s damages, inasmuch as it did not
affirmatively eliminate every material issue of fact with respect to
whether plaintiff would have accepted the settlement offer but for its
deficient conduct (see generally Dempster v Liotti, 86 AD3d 169, 180-
181).

     Lastly, we reject defendant’s contention that it was entitled to
summary judgment on the ground that plaintiff’s damages were not
reasonably ascertainable. Plaintiff’s damages in this case were the
$60,000 settlement offer that she lost, less the attorney’s fees and
costs she incurred in pursuing the settlement. Thus, plaintiff’s
damages were indeed ascertainable (see generally Plymouth Org., Inc. v
Silverman, Collura & Chernis, P.C., 21 AD3d 464, 465).




Entered:   February 3, 2017                     Frances E. Cafarell
                                                Clerk of the Court
