Opinion
Index No.: 109704/98
06-15-2001
JAMES FUSCO, Plaintiff, v. MARIA THERESA FAUCI, Individually and as Executrix of the Estate of JAMES ROBERT FAUCI, ESQ., CHRISTOPHER FAUCI and ANTHONY FAUCI, Defendants.
DECISION/ORDER
Present: LOUIS B. YORK, J.S.C.:
In this legal malpractice action, defendants move to vacate the portion of the Court's December 27, 2000 order which denied their cross-motion based on defendants' default. Defendants explain that because counsel only recently was listed correctly in the court computer as counsel for defendants, they were not notified of the argument date by the court or by their calendar service. As plaintiff points out, the parties to a lawsuit have an obligation to know when the court schedules motions and arguments with respect to their cases. However, in this instance defendants swear to the court that they did follow the case through their calendar service; and, plaintiff has not given the court any reason to disregard counsel's avowal. Moreover, the parties have vigorously litigated this case and have appeared before the court on numerous occasions. Thus, this is not a situation in which the defaulting counsel has neglected to defend the action. In light of the above, and of the fact that the mix-up in the court's own computer system contributed to the confusion, the court shall reconsider the cross-motion.
The motion, which seeks to dismiss the remainder of the complaint for legal malpractice, also has merit. Legal malpractice claims consist of the following elements: (1) attorney negligence (2) proximately causing the loss; and (3) proof of damages. Tinter v. Rapaport, 253 A.D.2d 588, 677 N.Y.S.2d 325 (1st Dept. 1998). The damages are based on the value of the claim lost. Campagnola v. Mulholland, Minion & Roe, 76 N.Y.2d 38, 42, 556 N.Y.S.2d 239, 241 (1990).
As plaintiff argues, a legal malpractice action can remain viable notwithstanding the ultimate settlement of the underlying lawsuit. See Cohen v. Lipsig, 92 A.D.2d 536, 459 N.Y.S.2d 98 (2nd Dept. 1983). However, there must be a showing of damages due to the malpractice; otherwise, the plaintiff has failed to establish a prima facie case. Because of this, Cohen applies where the plaintiff was forced to settle the case because of his or her counsel's mistakes; or where the plaintiff can otherwise show a compensable injury notwithstanding the settlement. See id.; Titsworth v. Mondo, 95 Misc. 2d 233, 407 N.Y.S.2d 793 (Sup. Ct. Monroe County 1978). Where the plaintiff did not sustain an economic injury due to the settlement terms, on the other hand, the cause of action is no longer viable.
The underlying lawsuit here was settled for $1,250,000, and the settlement occurred seven years after defendants' initial failure to perfect the appeal of my decision setting aside the jury verdict. Plaintiff now seeks to collect the $1,250,000 plus interest that would have accrued over seven years.
Assuming malpractice, the measure of damages would be the collectible judgment but for the malpractice. Titsworth, 95 Misc. 2d at 243, 407 N.Y.s.2d at 798. Here, there is no issue of fact as to the valuation of these damages. The original jury verdict was for $1,250,000. However, plaintiff has stated that seven years ago he urged his attorney, Mr. James Fauci, to settle the case for $700,000. To make plaintiff whole, which is the purpose of this current lawsuit, see McKenna v. Forsyth, - A.D.2d -, -, 720 N.Y.S.2d 654, 657 (4th Dept. 2001), lv denied, - N.Y.2d -, - N.Y.S.2d - (2001), plaintiff should be awarded the $700,000 he wanted to receive seven years ago, plus the interest that would have accrued on this amount over seven years. At 9% straight interest, which is the rate generally awarded by the court, this amount would total $1,141,000. Plaintiff, as already noted, has settled for greater than this amount. Thus, he has not shown that the malpractice has damaged him financially, and he has not alleged a prima facie case.
Therefore, it is
ORDERED that the motion to vacate the default and allow reargument is granted; and it is further
ORDERED that, on reconsideration, the cross-motion is granted and the case is dismissed. DATE: 6/15/01
ENTER:
/s/_________
Louis B. York, J.S.C.