The defendants Benjamin M. Pinczewski, Esq. and Law Offices of Benjamin M. Pinczewski, P.C. move for an order, pursuant to CPLR § 3212, granting the defendants summary judgment and dismissing the Complaint in its entirety, with prejudice.

This malpractice claim arises out of the defendants' legal representation of the plaintiff during an underlying personal injury lawsuit. The plaintiff hired the defendants to represent her after she was involved in a two-car accident on April 4, 2001. The plaintiff was a passenger in a vehicle owned and operated by Fabian Cando ("Cando") that collided with a vehicle owned by Julio Morales ("Morales") and operated by Edgar Palaquibay ("Palaquibay"). The defendants were retained in 2001, commenced a personal injury lawsuit on the plaintiff's behalf on March 31, 2004, and continued to represent her until April of 2005 when the plaintiff discharged the defendants and requested that her file be transferred to her new attorneys. On May 5, 2005 the plaintiff commenced this legal malpractice action against the defendants. The alleged malpractice arises out of the defendants' decision to file the underlying action in the Civil Court instead of the Supreme Court, and the defendants' decision [*2]to sue only Cando but not Palaquibay. The plaintiff avers that the defendants' decisions made the case untriable and handcuffed her into settling the case for an amount less than she should have. On March 21, 2006 the defendants moved to dismiss the Complaint for failure to state a cause of action, or alternatively, because the action was filed prematurely. On June 5, 2006 the motion to dismiss was denied but the court agreed that the action was filed prematurely because the underlying matter was still ongoing. The action was disposed and the plaintiff moved to restore it on October 1, 2009 after the underlying action settled for $10,000.00. The defendants cross-moved for dismissal and were denied, and the motion to restore was granted on January 29, 2010. On September 24, 2013 the plaintiff filed a Note of Issue and Certificate of Readiness, the defendants then filed the instant motion for summary judgment dismissing the Complaint.

The defendants argue that there are no issues of fact and that the court should decide the case as a matter of law. To support their position the defendants note that the plaintiff settled the underlying case for $10,000.00 in Civil Court, which is $15,000.00 less than the $25,000.00 cap on Civil Court judgments. The defendants argue that this is significant because the plaintiff cannot prove one of the requirements for proving legal malpractice she suffered an ascertainable damage as a result of the case being filed in Civil instead of Supreme Court, as is one of her contentions. The defendants aver that because the plaintiff was unable to attain the maximum judgment of $25,000.00 in Civil Court, she cannot demonstrate that she suffered ascertainable damages by having the underlying case tried in a court with a $25,000.00 cap. The defendants also claim that she would not have been rewarded any more than the $10,000.00 settlement had the case been tried in Supreme Court. The defendants argue that the plaintiff's new counsel could have removed her case to Supreme Court but instead chose to continue litigating in Civil Court for approximately four years after the plaintiff discharged the defendants as counsel. Therefore, the defendants argue, the plaintiff's new counsel had the "last clear chance" to remedy any alleged malpractice by the defendants, and broke the link of proximate causation between the defendants representation of the plaintiff and the outcome of the case.

The plaintiff presents three arguments in opposition to the motion for summary judgment. First, she argues that res judicata bars the issuing of a summary judgment because the defendant made similar arguments in their prior motions to dismiss, which were denied, and because in a previous decision the court stated that there were issues of fact to resolve. Second, the plaintiff avers that the defendants obliterated her chance at recovering from the driver of the other car that was involved in the accident. The plaintiff believes that because Palaquibay wasn't named as a defendant, Cando had an "empty chair defense" allowing him to shift blame to Palaquibay, and that because Cando's insurance policy was capped at $25,000.00, the plaintiff was forced to settle for a $10,000.00 recovery since Palaquibay was not included in the lawsuit. Finally, the plaintiff argues that the defendants fumbled the underlying case so badly that it was impracticable for the case to be removed to the Supreme Court. The plaintiff argues that the cost of the application for removal to Supreme Court being denied outweighed the [*3]benefit of it being granted because the the second driver was not named as a defendant, because even if the removal was granted, the plaintiff would still be stuck with one defendant whose insurance policy was capped at $25,000.00.

A party can be granted summary judgment if it can "on paper proof alone without the aid of oral testimony, convince the court that there is no material issue of fact outstanding and that the facts mandate judgment in its favor" (see CPLR § 3212, Commentary C3212:1). "We repeat today a precept frequently stated—where the moving party has demonstrated its entitlement to summary judgment, the party opposing the motion must demonstrate by admissible evidence the existence of a factual issue requiring a trial of the action or tender an acceptable excuse for his failure so to do, and the submission of a hearsay affirmation by counsel alone does not satisfy this requirement" (see Zuckerman v. City of New York, 49 NY2d 557, 404 NE2d 718, 427 NYS2d 595 [1980]).

To recover damages for legal malpractice a plaintiff must prove that the defendant attorney (1) failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession; (2) that the attorney's breach of this duty proximately caused plaintiff to sustain (3) actual ascertainable damages, and (4) that the plaintiff would have been successful in the underlying action if the defendant had exercised due care (see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442, quoting McCoy v. Feinman, 99 NY2d 295, 301-302, 755 NYS2d 693, 785 NE2d 714 [2002]). "A prima facie case requires proof of the defendant's negligence, that such negligence was the proximate cause of the plaintiff's loss, and actual damages" (see Shopsin v. Siben & Siben, 268 AD2d 578 [2nd Dept 2000]). A defendant attorney will succeed on a motion for summary judgment to dismiss a legal malpractice claim if she submits evidence in admissible form establishing that the plaintiff cannot prove at least one of the aforementioned essential elements (id.). A plaintiff's cause of action for legal malpractice must stand on its own merits, and there is no automatic waiver, as a matter of law, of a plaintiff's right to sue for legal malpractice even if they voluntarily agreed to enter into a stipulation of settlement (see N.A. Kerson Co. Inc. v Shayne Dachs Weiss Kolbrenner Levy and Moe Levine, 59 AD2d 551, 552-553 [2nd Dept 1977], affd 45 NY2d 730 [1978]). However, in malpractice actions a client cannot recover against an errant attorney without demonstrating that she would otherwise have succeeded on the merits (see Servidone Const. Corp. v Security Ins. Co. of Hartford, 64 NY2d 419, 425 [1985]; see also e.g. Kerson, 59 AD2d 551 [2nd Dept 1977], affd 45 NY2d 730 [1978]).

The First Department has held that for the plaintiff to succeed in an action for legal malpractice where there was a settlement in the underlying case, she must "demonstrate that if not for the alleged acts of malpractice, [s]he would have been able to recover or proceed in a manner other than that which actually eventuated" (see Becker v Julien, Blitz & Schlesinger, P.C., 95 Misc 2d 64, 68 [1977]). "Where the termination [of a case] is by settlement rather than by dismissal or adverse judgment, malpractice by the attorney is more difficult to establish, but a cause of action can be made out if it is shown that assent by the client to the settlement was compelled because a prior misfeasance or nonfeasance by the attorneys left no other recourse (id. At 66). "As a matter of policy, cases once settled should not be readily relitigated as to their merits in another forum, where the original defendant has been released and the plaintiff's original attorneys have become the defendants.Under those circumstances, the burden must be on the plaintiff seeking such recovery to demonstrate by evidence rather than by conclusory allegations, that he indeed suffered substantial financial loss because of misdeeds by his attorneys and not by second guessing as to their judgment" (see Becker, at 68). On appeal, the Appellate Division stated, "we agree with the Special Term that insofar as this action rests upon a claim [*4]that defendants' misconduct resulted in an unfavorable settlement of plaintiff's underlying claim against Zale Corporation, the complaint must be dismissed for the reason that it can only be the sheerest speculation whether a different handling of the case by defendants-attorneys, or participation by a particular member of the defendants' firm, would have resulted more favorably to plaintiff than the settlement that was actually made. Accordingly, the second cause of action for malpractice was properly dismissed" (see Becker v. Julien, Blitz & Schlesinger, P.C., 66 AD2d 674, 19 [1978]). In the case at bar, the plaintiff has failed to demonstrate that she has suffered ascertainable damages or substantial financial loss proximately caused by the defendants' breach of duty The plaintiff has also failed to demonstrate beyond the sheerest speculation whether a different handling of the case would have produced a more favorable outcome than the settlement that was actually made.

It is uncertain whether the defendants failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession. The fact that the defendants did not name Palaquibay as a party to the lawsuit and did not file the case in Supreme Court raise questions of fact as to whether or not they breached a duty to the plaintiff. However, a failure to exercise ordinary reasonable skill and knowledge is only one of four prongs that the plaintiff must prove in order to succeed on her claim. The plaintiff has failed, with more than conclusory allegations, to demonstrate ascertainable damages or substantial financial loss, let alone that they were proximately caused by the defendants. The medical records provided to the court, indicate that the plaintiff's treatments following the accident totaled $11,441.39 (see Exhibit B of Defendant's Affidavit). Those expenses were covered entirely by insurance approximately eight years prior to the $10,000.00 settlement. In her deposition dated March 26, 2012, the plaintiff states that she did not have to pay any money out-of-pocket and that she discontinued treatments when the insurance company stopped paying for them (see Plaintiff's Deposition, at 73-74).With regards to the amount of time she missed from work, the plaintiff states that she had to take additional maternity leave to recover from the accident, that after returning to work she had to miss days to attend physical therapy, and that she lost salary because of the missed time (id, at 47-50). She contends that the $10,000.00 settlement was inadequate because it doesn't cover the therapies that she would have undergone on her back, neck, shoulder, and knee which she says continued to be necessary as of the time of her deposition, (March 26, 2012). However, it is unclear what those therapies would be, if they are necessary, and how much they cost (id, at 87). The plaintiff has had adequate time to provide documentation indicating what further treatments are warranted, but has failed to do so. The plaintiff also says that she used some of the settlement money to undergo therapy in Staten Island but neither remembers the name of the facility where she treated, nor how much she spent on therapy (id, at 87-88). The plaintiff has provided no evidence to support the truth of her treatments, no documentation from a medical professional to support her contention of continued treatment after the settlement or need for treatment moving forward, and she provides no pay stubs or employers affidavits to support her claim of work-time or salary lost as a result of the accident. Simply put, the plaintiff has failed to prove the existence of ascertainable damages beyond the amount she received from the settlement.

In Perks v. Lauto, 760 N.Y.S.2d 231 (2003), where plaintiffs' counsel failed to adequately investigate the assets and insurance coverage of a driver whose vehicle was involved in an accident with the plaintiff, the Second Department found that the appellants "submitting evidence establishing that the plaintiffs discharged them and hired new counsel two months before the plaintiffs settled their claim against the driver. Under such circumstances, subsequent counsel had a sufficient opportunity to protect plaintiffs' rights, and any negligence by the appellants was not the proximate cause of the plaintiffs' alleged damages." Here, subsequent counsel represented the plaintiff in the underlying matter for approximately four years prior to the settlement. This court finds four years to be a sufficient period of time to protect the plaintiff's right and to relieve the defendants of proximate causation for alleged damages suffered by the [*5]plaintiff.

The court disagrees with plaintiff's contention that this motion for summary judgment is barred by res judicata on the grounds that the defendants made similar arguments in a prior motion to dismiss that was denied. The court has the discretion to treat a CPLR 3211 motion to dismiss as a CPLR 3212 motion for summary judgment and the "disposition will as a rule be deemed a disposition on the merits and thus entitled to res judicata treatment. With such an impact, the treatment is not to be lightly indulged" (see CPLR § 3211, Commentary C3211:44). If the court intends to apply res judicata treatment to a motion to dismiss it should make the parties aware of its intent "so that an appropriate record may be made by the parties" (see Mareno v. Kibbe, 32 AD2d 825, 302 N.Y.S.2d 324 [2nd Dept 1969]). Here, the court never indicated to the parties that it intended to treat prior motion practice for the purposes of res judicata and finds that the plaintiff has failed to produce adequate evidence demonstrating that she has suffered ascertainable damages or that if she had suffered ascertainable damages, the defendants were the cause of those damages.

This court finds that the plaintiff has not met her burden to recover damages for legal malpractice. It is arguable whether or not the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, but it can be said with fair certainty that the attorney's alleged breach of duty did not proximately cause the plaintiff to sustain actual ascertainable damages, or that the plaintiff would have been successful in the underlying action if the defendants had exercised due care. For these reasons, the defendants' motion for summary judgment dismissing the complaint is granted.