Opinion
May 31, 1996
Appeal from the Supreme Court, Queens County, Dunkin, J.
Present — Pine, J.P., Fallon, Callahan, Balio and Davis, JJ.
Order unanimously affirmed without costs. Memorandum: Supreme Court properly exercised its discretion in denying plaintiffs' motion for a default judgment in this legal malpractice action. Defendants promptly delivered the summons and complaint to their insurer and, when served with the motion papers seeking a default judgment, also promptly delivered those papers to their insurer. There is no proof that defendants deliberately defaulted, and the court did not abuse its discretion in accepting the negligence or inadvertence of the insurer as a reasonable excuse for the default ( see, Damselle, Ltd. v. 500-512 Seventh Ave. Assocs., 184 A.D.2d 367; Price v. Polisner, 172 A.D.2d 422; Pickney v. Wood, 165 A.D.2d 949). To establish a prima facie case of legal malpractice, plaintiffs must establish that they would have been successful in the underlying action ( see, Albach v. Manning Mule, 201 A.D.2d 601, lv denied 84 N.Y.2d 803; Gonzales v. O'Hagen Reilly, 189 A.D.2d 801, lv denied 84 N.Y.2d 810). Defendants submitted facts demonstrating lack of merit to the underlying action, and hence, the existence of a meritorious defense to the legal malpractice action.
We reject plaintiffs' contention that the doctrine of judicial estoppel bars defendants from challenging the merits of the underlying action. That doctrine "precludes a party who assumed a certain position in a prior legal proceeding and who secured a judgment in his or her favor from assuming a contrary position in another action simply because his or her interests have changed" ( Prudential Home Mtge. Co. v. Neildan Constr. Corp., 209 A.D.2d 394, 395). Defendants were not parties to the prior action nor was judgment obtained in plaintiffs' favor in that action.