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

783
CA 12-00064
PRESENT: SCUDDER, P.J., SMITH, FAHEY, LINDLEY, AND MARTOCHE, JJ.


LEONARD M. ENGLERT AND YVONNE ENGLERT,
PLAINTIFFS-RESPONDENTS,

                    V                             MEMORANDUM AND ORDER

GERALD W. SCHAFFER, JR., ESQ., CELLINO &
BARNES, P.C., DEFENDANTS-APPELLANTS,
STEVEN BARNES, ESQ., INDIVIDUALLY AND DOING
BUSINESS AS THE BARNES FIRM, AS SUCCESSORS IN
INTEREST TO CELLINO & BARNES, AND ROSS CELLINO,
INDIVIDUALLY AND AS A PARTNER IN THE LAW FIRM
OF CELLINO & BARNES, DEFENDANTS.


MARK R. UBA, WILLIAMSVILLE, FOR DEFENDANTS-APPELLANTS.

BURKE AND BURKE, ROCHESTER (PATRICK J. BURKE OF COUNSEL), AND S.
ROBERT WILLIAMS, PLLC, SYRACUSE, FOR PLAINTIFFS-RESPONDENTS.


     Appeal from an order of the Supreme Court, Monroe County (David
Michael Barry, J.), entered April 4, 2011 in a legal malpractice
action. The order denied in part defendants’ motion for summary
judgment.

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

     Memorandum: Plaintiffs commenced this legal malpractice action,
and we previously dismissed all but the third cause of action for
breach of fiduciary duty (Englert v Schaffer, 61 AD3d 1362, rearg
denied 64 AD3d 1200). Supreme Court granted in part the summary
judgment motion of defendants by dismissing the third cause of action
against defendants Steven Barnes and Ross Cellino, but denied the
motion with respect to defendants Gerald W. Schaffer, Jr., Esq., and
Cellino & Barnes, P.C. (defendants).

     We reject defendants’ contention that summary judgment in their
favor is required on the ground that plaintiffs could not establish
that they would have accepted a settlement offer made in the
underlying personal injury case if Schaffer had notified them of that
offer. When the alleged negligence of defendant involves a failure to
communicate a settlement offer, the plaintiff must “demonstrate that,
but for the [defendant’s] alleged negligence, [plaintiff] would have
accepted the offer of settlement and would not have sustained any
damages” (Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303
                                 -2-                          783
                                                        CA 12-00064

AD2d 561, 562, lv denied 100 NY2d 511). Even assuming, arguendo, that
defendants met their initial burden, we conclude that plaintiffs
raised a triable issue of fact whether they would have accepted the
settlement offer if Schaffer had promptly communicated it to them (see
generally Alvarez v Prospect Hosp., 68 NY2d 320, 324).




Entered:   June 8, 2012                        Frances E. Cafarell
                                               Clerk of the Court
