This is a legal malpractice action. Plaintiff Frieda Tydings is a former trustee of an irrevocable inter vivos trust created in 1993 by and for the benefit of an individual named Ricki Singer. On January 1, 1997, plaintiff resigned as trustee and was replaced by a successor. On August 21, 2003, Singer commenced a proceeding in the Surrogate's Court, New York County, in which she sought a compulsory accounting from both plaintiff and the successor trustee. Plaintiff retained the defendant law firm, Greenfield, Stein & Senior, LLP, to represent her in the accounting action. Plaintiff claims that defendant never filed an answer or any other response to Singer's petition for a compulsory accounting and that, as a result, on September 24, 2003, the Surrogate's Court issued an order requiring her to provide an accounting. Thereafter, defendant withdrew as plaintiff's counsel in the Surrogate's Court proceeding and plaintiff filed a final accounting on November 14, 2004.

On November 16, 2005, Singer filed objections to plaintiff's accounting and sought to charge plaintiff with respect to matters that occurred before her resignation as trustee in 1997. Plaintiff, through her new counsel, filed a motion to dismiss the objections, pursuant to CPLR 3211(a)(5), on the ground that the six-year statute of limitations for accounting actions had expired prior to the filing of Singer's petition to compel an accounting. On January 27, 2006, the Surrogate's Court (Renee Roth, J.) denied plaintiff's motion on the grounds that (1) the accounting six-year statute of limitations had not yet expired by the filing date of the petition and (2) plaintiff waived the statute of limitations defense by failing to assert it in a timely manner. See In re Singer, 12 Misc 3d 621, 624-26 (Surr's Ct NY Co 2006). On appeal, the order was affirmed solely on the issue of waiver. See In re Singer, 30 AD3d 211 (1st Dept 2006). The First Department did not address the issue of whether the plaintiff's statute of limitations defense would have been valid if it had been timely asserted. This legal malpractice action then followed. The defendant now moves to dismiss the complaint, pursuant to CPLR 3211 (a)(1), (5) and (7), on the grounds that the complaint fails to state a cause of action and/or is barred by collateral estoppel.

[*2]Discussion

An attorney may be liable for malpractice if it is established that his or her conduct fell below the ordinary and reasonable skill and knowledge commonly possessed by a member of his or her profession. See DaSilva v. Suozzi English Cianciulli & Peirez, 233 AD2d 172, 174 (1st Dept. 1996). In order to establish a cause of action sounding in legal malpractice, a plaintiff must establish not only that counsel failed to exercise due care, but that he or she would have prevailed in the matter at issue "but for" the attorney's negligence. See Levine v. Lacher & Lovell-Taylor, 256 AD2d 147 (1st Dept. 1998); Zasso v. Maher, 226 AD2d 366, 367 (2nd Dept.1996). In moving to dismiss the complaint, defendant argues that in view of the finding by the Surrogate Court that the six-year statute of limitations had not expired prior to the time the accounting proceeding was commenced, plaintiff is collaterally estopped from arguing in this malpractice action that she had a valid statute of limitations defense to the accounting action and therefore cannot prove that she would have prevailed in the accounting action but for defendant's alleged malpractice in failing to raise this defense. The court agrees.

The doctrine of collateral estoppel precludes a party from litigating in a subsequent action or proceeding an issue clearly raised in a prior action or proceeding and decided against that party. See Ross v. Medical Liability Mutual Ins. Co., 75 NY2d 825, 826 (1990); Color by Pergament, Inc. v. O'Henry's Film Works, Inc., 278 AD2d 92 (1st Dept 2000). See also Malloy v. Trombley, 50 NY2d 46, 52 (1980). It is well settled that the doctrine only applies if the identical issue was material to the prior litigation, essential to the decision rendered, and if the party against whom the issue was decided had a full and fair opportunity to litigate the issue in the earlier action. See Ross v. Medical Liability Mutual Ins. Co., 75 NY2d at 826. Here, the issue of whether the plaintiff had a valid statute of limitations defense in the accounting action was material to the litigation in Surrogate's Court, essential to the court's determination and squarely addressed after having been fully presented.

In opposition to the motion, plaintiff nevertheless argues that because the First Department affirmed the Surrogate's order solely on the basis of the issue of waiver without even addressing the statute of limitations defense, the Surrogate Court's decision regarding the statute of limitations has no preclusive effect in this action. The Surrogate Court's determination was, however, a final order. Had no appeal been taken, there would be no question but that it clearly would have preclusive effect as to both issues. The fact that an appeal was taken and that the First Department, in affirming the final order, addressed only one of the two issues should not somehow eliminate the prior preclusive effect of the other issue. Indeed, it would be inappropriate for this court to, in effect, sit in judgment of the Surrogate Court's determination on the statute of limitations issue, especially where the issue had been fully briefed and presented to the Appellate Division. It is not for this court to step into the breach and decide issues raised on an appeal from a final order which the First Department, in affirming, did not expressly address.

Although the plaintiff has cited a number of federal cases which have held that a district court decision does not have a preclusive effect with respect to any issues which are raised on appeal but not addressed in a Circuit Court's order of affirmance, see Aviall, Inc. v. Ryder Systems, Inc., 110 F3d 892, 897 (2nd Cir 1997); Gelb v. Royal Globe Ins. Co., 798 F2d 38, 45 (2nd Cir 1986), she has failed [*3]to cite any New York state court cases, and this court has found none, which have adopted this position. On the contrary, as the defendant points out, a judgment in New York is conclusive between the parties until reversed or set aside, see McLaughlin v. Hernandez, 16 AD3d 344, 346 (1st Dept 2005), and the pendency of an appeal does not prevent the use of a challenged judgment as the basis of collateral estoppel. See Anonymous v. Dobbs Ferry Union Free School Dist., 19 AD3d 522, 523 (2nd Dept 2005); Matter of Capoccia, 272 AD2d 838, 847 (3rd Dept 2000). If an issue which has been decided by a trial court is given preclusive effect while an appeal from the determination is pending, then surely this effect is not eliminated when the Appellate Division affirms the order appealed from without addressing one of the issues on which the order was based. The court is therefore persuaded that, on the basis of the Surrogate Court's decision and order, the plaintiff is collaterally estopped from arguing in this action that she would have prevailed in that proceeding but for the defendant's failure to raise a statute of limitations defense. Under the circumstances, the defendant's motion to dismiss must be granted.

Accordingly, the defendant's motion to dismiss is granted and the complaint is hereby dismissed.

The Clerk Shall Enter Judgment Herein

Dated:1/12/07MARYLIN G. DIAMOND, J.S.C.

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