Appellate Division of the Supreme Court of New York, Second DepartmentOct 9, 1979
72 A.D.2d 548 (N.Y. App. Div. 1979)

October 9, 1979

In an action to recover damages for legal malpractice and the intentional infliction of emotional distress, defendant appeals from a judgment of the Supreme Court, Dutchess County, entered June 6, 1978, upon a jury verdict, which was in favor of plaintiffs and against him. Judgment reversed, on the law, without costs or disbursements, the cause of action alleging the intentional infliction of emotional distress is dismissed and a new trial is granted as to the cause of action for legal malpractice with respect to the issue of damages only, unless, within 20 days after entry of the order to be made hereon, plaintiffs shall serve and file in the office of the clerk of the trial court written stipulations consenting to reduce the verdict in their favor to $7,500, in which event, the judgment, as so reduced and amended, is affirmed, without costs or disbursements. Although the evidence adduced at trial supports a jury verdict for legal malpractice against defendant, an attorney, who undertook to represent both sides in a real estate transaction and then took actions inimical to plaintiffs' interests, including the institution of a lawsuit against them, his actions were not so outrageous or extreme as to warrant a judgment for the intentional infliction of emotional disturbance (see Drago v Buonagurio, 46 N.Y.2d 778; Fischer v Maloney, 43 N.Y.2d 553). The jury's verdict of $30,000 with respect to the malpractice action was excessive. Accordingly, a new trial on the issue of damages only is required unless plaintiffs agree to accept $7,500 as a fair and proper evaluation of damages suffered. Damiani, J.P., O'Connor, Lazer and Rabin, JJ., concur.