637 N.Y.S.2d 777 | N.Y. App. Div. | 1996
—In an action to recover damages for legal malpractice, etc., the defendant appeals from an order of the Supreme Court, Queens County (Price, J.), dated December 6, 1994, which denied his motion for summary judgment dismissing the complaint.
Ordered that the order is affirmed, with costs.
A settlement and release in an underlying action enable a plaintiff to obviate the full damage that would otherwise have flowed from his attorney’s negligence and do not preclude a subsequent action for legal malpractice where the settlement was compelled because of the mistakes of former counsel (see, Wille v Maier, 256 NY 465; Mazzei v Pokorny, Schrenzel & Pokorny, 125 AD2d 374; Cohen v Lipsig, 92 AD2d 536; Titsworth v Mondo, 95 Misc 2d 233). The plaintiffs at bar have demonstrated that there are issues of fact as to their former attorney’s negligence, the merits of their underlying personal injury claim, and whether they freely elected to settle their personal injury action such that a trial is warranted (see, Cohen v Lipsig, supra). Sullivan, J. P., Pizzuto, Goldstein and Florio, JJ., concur.
