Supreme Court, New York County, April 25, 2022

Furman Kornfeld & Brennan LP (Aaron Michael Barham of counsel) for defendants.

Schwartz, Ponterio & Levinson PLLC (Matthew Schwartz of counsel) for plaintiff.

Plaintiff commenced this action seeking damages for alleged legal malpractice on the part of the defendant attorneys, who represented plaintiff in a medical practice case resulting in a settlement of 1.3 million dollars.

On June 25, 2021, defendants moved for summary judgment and dismissal of the complaint. On April 21, 2022, the court heard oral argument and reserved decision. For the reasons stated below, the motion is granted.

On September 28, 2010, plaintiff's obstetricians Dr. Ronald Reiss and Dr. John Migotsky delivered plaintiff's child at Greenwich Hospital in Greenwich, Connecticut. Dr. Reiss [*2]performed an episiotomy during the vaginal delivery. While Dr. Reiss' delivery notes document a second-degree laceration, he allegedly caused a fourth-degree laceration, and his alleged failure to properly repair the deep episiotomy and laceration allegedly caused a rectovaginal fistula to develop. There were otherwise no complications, and the baby was born healthy. Plaintiff alleged she had informed her doctor in advance that she did not consent to an episiotomy.

On December 22, 2011, the Pagan Firm commenced the underlying medical malpractice action against Dr. Reiss, Dr. Migotsky, Dr. Reiss' P.C., and Dr. Ascher-Walsh for injuries plaintiff allegedly sustained during Dr. Reiss' episiotomy and Dr. Ascher-Walsh's attempted fistula repair. The Pagan Firm strategically did not sue Greenwich Hospital or Dr. Weinstein.

Plaintiff's alleged injuries included, inter alia, the fourth-degree laceration and tears secondary to episiotomy, rectovaginal pain, disfigurement and pressure, recurrent infections, recurrent rectovaginal fistula, necessity for multiple surgical procedures, mental anguish, and inability to have intercourse.

Plaintiff is a practicing immigration law attorney and was admitted to the New York State bar in August 2010.{**75 Misc 3d at 759}

The note of issue was filed on May 17, 2013.

The defendants were represented by a leading medical malpractice defense firm Heidell, Pittoni, Murphy & Bach, LLP.

Plaintiff met with Tania and William Pagan on February 18, 2015, to discuss trial preparation, settlement authority, and the potential risks of trial. At that meeting, plaintiff indicated that she would accept a settlement that cleared a $900,000 net amount (after deduction of disbursements, attorneys' fees, and liens). In the ensuing months, there were numerous trial preparation meetings and communications about settlement developments.

On September 10, 2015, plaintiff personally appeared with Pagan in court for a settlement conference before Justice Peter O'Donoghue, the presiding judge over the Queens Supreme Court Medical Malpractice Part. Plaintiff rejected a $1,000,000 settlement offer.

Plaintiff alleges she rejected the settlement offered to her and directed the Pagan attorneys to go to trial. Plaintiff further alleges that defendants focused their efforts on forcing her to settle the case.

On September 16, 2015, plaintiff accepted a $1,300,000 settlement offer and executed a general release shortly thereafter. On November 10, 2015, the Pagan Firm issued plaintiff a settlement amount of $1,000,000—the net amount after $277,063.05 attorneys' fees, $19,836.95 in disbursements, and $3,100 in medical bills. The settlement check was deposited by plaintiff. Plaintiff denies the acceptance of the settlement offer was voluntary.

On October 31, 2015, plaintiff emailed attorney Tania Pagan thanking her for the "personal attention to [her] case for the past five years." On November 15, 2015, Pagan emailed plaintiff thanking her for a gift basket plaintiff has sent.

Summary judgment must be granted where a party has tendered evidentiary proof in admissible form demonstrating the absence of any material issues of fact. (See Alvarez v Prospect Hosp., 68 NY2d 320 [1986]; Winegrad v New York Univ. Med. Ctr., 64 NY2d 851 [1985].) As stated by the Court of Appeals, "when there is no genuine issue to be [*3]resolved at trial, the case should be summarily decided, and an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus deny to other litigants the right to{**75 Misc 3d at 760} have their claims promptly adjudicated." (Andre v Pomeroy, 35 NY2d 361, 362, 364 [1974].) It is well established that to defeat a motion for summary judgment, a triable issue of fact must be shown to be "real, not feigned since a sham or frivolous issue will not preclude summary relief." (Fender v Prescott, 101 AD2d 418, 425 [1st Dept 1984], affd 64 NY2d 1077 [1985]; see also Holy Spirit Assn. for Unification of World Christianity v Harper & Roe, Publs., 101 Misc 2d 30, 35 [Sup Ct, NY County 1979] ["Mere surmise, suspicion and accusation are insufficient to defeat summary judgment"].) Mere conclusions, expressions of hope, or unsubstantiated allegations or assertions are insufficient to successfully oppose a motion for summary judgment. (See Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966 [1988]; Cabrera v Rodriguez, 72 AD3d 553 [1st Dept 2010].) Where there is no legal merit to a cause of action, or where a question of fact is not raised, summary judgment should be granted. (See Land.Com, Inc. v Kleiner, 29 AD3d 744 [2d Dept 2006], citing Fresh Meadow Country Club v Village of Lake Success, 158 AD2d 581 [2d Dept 1990].)

To prevail on her claim of legal malpractice, plaintiff must establish that: (1) there existed an attorney-client relationship giving rise to a duty of care; (2) the attorney breached that duty of care; (3) the attorney's negligence proximately caused the plaintiff's loss; and (4) the claimant sustained actual and ascertainable damages. (AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 435 [2007].)

" 'In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession" and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages' (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007], quoting McCoy v Feinman, 99 NY2d 295, 301-302 [2002]; see Buczek v Dell & Little, LLP, 127 AD3d 1121 [2015]). A claim for legal malpractice may remain viable, despite settlement of the underlying action, if settlement of the action was effectively compelled by the mistakes of counsel (see Schiff v Sallah Law Firm, P.C., 128 AD3d 668 [2015]; Boone v Bender, 74 AD3d 1111, 1112 [2010])." (Feldman v Finkelstein & Partners, LLP, 131 AD3d 505, 506 [2015].)

{**75 Misc 3d at 761}Where an attorney presents evidence in admissible form to establish that the client would not be able to prove one of the four elements of a legal malpractice claim, the attorney has sustained his prima facie burden of demonstrating that he is entitled to summary judgment. (See Frankel v Vernon & Ginsburg, LLP, 101 AD3d 447 [1st Dept 2012].)

Furthermore, plaintiff is required to meet a heightened standard of causation that " 'but for' the attorney's negligence," the outcome of the underlying matter would have been substantially different. (AmBase Corp., 8 NY3d at 434.) A former client's failure to meet any one of these elements requires dismissal of the malpractice claim and the grant of summary judgment against the former client. (Verdon v Duffy, 120 AD3d 1343 [2014] [affirming dismissal by summary judgment]; Kaufman v Medical Liab. Mut. Ins. Co., 121 AD3d 1459 [2014].)

In this action and in her pleadings, plaintiff originally alleged many aspects of defendants' representation in the prosecution of the personal injury case constituted malpractice. In opposition to defendants' motion, plaintiff has essentially narrowed her allegations to a single claim, that defendants forced her to settle the case by pressuring her, threatening to withdraw as her attorneys if the case did not settle and demanding that she front $30,000 in trial costs in [*4]order to move ahead with the trial. Plaintiff asserts these actions essentially forced her to accept the settlement, because she was unable to find new counsel so late in the litigation, and she felt it was clear defendants did not want to proceed to trial.

Defendants have failed to submit affidavits on the motion denying these claims of coercion. Defendants submit an expert affirmation from Michael Zuller, Esq., that incorrectly alleges that there is no claim or allegation that plaintiff was coerced into accepting the settlement offer. Mr. Zuller opines that defendants did not depart from the applicable standard of care in prosecuting the underlying action, and that plaintiff cannot show the "but for" proximate causation element in establishing actual non-speculative damages. Mr. Zuller further opines that the underlying action would have been risky to try and cites that a significant percentage of medical malpractice trials result in a defense verdict.

Plaintiff's unopposed allegations regarding the coerced settlement, including the threat by defendants to withdraw from representation and the demand that plaintiff front trial{**75 Misc 3d at 762} costs in contravention of the parties' retainer agreement, do indeed suggest ethical breaches on the part of defendants.

However, the violation of a disciplinary rule or ethical obligations does not, without more, generate a cause of action for legal malpractice (Guiles v Simser, 35 AD3d 1054, 1056 [2006]; Weintraub v Phillips, Nizer, Benjamin, Krim, & Ballon, 172 AD2d 254 [1991]). To succeed on her legal malpractice claim, plaintiff would be required to prove that defendants were negligent in their legal representation, that their negligence was a proximate cause of her loss and that she sustained actual and ascertainable damages (see Ehlinger v Ruberti, Girvin & Ferlazzo, 304 AD2d 925, 926 [2003]).

Plaintiff's own expert does not dispute Mr. Zuller's opinion that the action would be risky to try and that a trial may have resulted in a defense verdict or a verdict lower than the settlement amount. In his affirmation, Mr. Bower states:

"As such, the issue is not whether the settlement was adequate or reasonable, a fair amount or not, but simply whether the client's assent was properly obtained. Whether accepting the offer was wise or foolish, and whether the settlement amount is fair or not, is entirely besides the point. In this case, the client's consent was not voluntarily or freely given. Her assent was only obtained 'under the gun.' . . .

"Predictably, the defense contends that the settlement amount herein was very favorable to the plaintiff, perhaps more than would be recovered at trial, and certainly more than if the trial went badly. All of that may be true, but all of that is totally irrelevant, nonetheless. The wisdom of the client's choice is not the legal test that matters herein. All that matters is whether the consent to settle was freely given. If freely given, the settlement is valid and binding, regardless of the amount. If not freely given, the settlement was improperly obtained, regardless of the amount." (Emphasis added.)

While the issue of whether plaintiff would have received a greater amount of money if she went to trial may be "irrelevant" to ethical considerations, it is not irrelevant to the pending malpractice claim. The concession of plaintiff's own expert that it is possible that plaintiff would not have recovered more money or even that plaintiff may have recovered less money if{**75 Misc 3d at 763} she proceeded to trial underscores that plaintiff will be unable at trial to establish that but for the settlement a trial would have resulted in a verdict in excess of 1.3 million dollars. (See e.g. Gallet, Dreyer & Berkey, LLP v Basile, 141 AD3d 405 [2016] [holding summary judgment dismissing [*5]the legal malpractice claim appropriately granted where the asserted damages are vague, unclear, or speculative]; Bellinson Law, LLC v Iannucci, 102 AD3d 563 [1st Dept 2013].)

While plaintiff cites to cases where a legal malpractice claim was held viable despite a settlement in the underlying action (Cohen v Lipsig, 92 AD2d 536 [2d Dept 1983]; Lattimore v Bergman, 224 AD2d 497 [2d Dept 1996]; Mazzei v Pokorny, Schrenzel & Pokorny, 125 AD2d 374 [1986]), these cases are distinguishable as none relate to a claim where the attorneys pressured a client to enter into a settlement; rather the cases cited involve circumstances where the settlement was required due to an error committed by counsel in their representation in the underlying action.

Thus even if the ethical breach alleged constituted malpractice, the inability of plaintiff to establish actual and ascertainable damages requires dismissal of the action.

Wherefore it is hereby ordered that defendants' motion for summary judgment is granted and the complaint is dismissed with costs and disbursements to defendants as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further ordered that the Clerk is directed to enter judgment accordingly; and it is further ordered that, within 20 days from entry of this order, defendants shall serve a copy of this order with notice of entry on the Clerk of the General Clerk's Office (60 Centre Street, Room 119); and it is further ordered that such service upon the Clerk shall be made in accordance with the procedures set forth in the Protocol on Courthouse and County Clerk Procedures for Electronically Filed Cases (accessible at the "E-Filing" page on the court's website at the address www.nycourts.gov/supctmanh); and it is further ordered that any relief not expressly addressed has nonetheless been considered and is hereby denied.