Bauza v. Livington
| Decision Date | 15 May 2007 |
| Docket Number | 2006-01197. |
| Citation | 2007 NY Slip Op 04245,836 N.Y.S.2d 645,40 A.D.3d 791 |
| Parties | MIRIAM BAUZA et al., Appellants-Respondents, v. JUDITH A. LIVINGTON et al., Respondents-Appellants. |
| Court | New York Supreme Court — Appellate Division |
Ordered that one bill of costs is awarded to the defendants.
The infant plaintiff, by his parents Miriam Bauza and John Bauza (hereinafter the plaintiffs), retained the defendants to commence a medical malpractice action against the healthcare professionals and providers responsible for treating the infant plaintiff. Shortly before the trial in the underlying action commenced, the plaintiffs' adversaries made an offer of settlement for $1,000,000. The offer of settlement was never accepted, and the case proceeded to trial. However, the offer remained in effect throughout the trial. At the conclusion of the trial, the jury found in favor of the plaintiffs and awarded them the principal sum of $330,000.
The plaintiffs commenced this action against the defendants seeking damages for legal malpractice and fraud, alleging, inter alia, that the defendants never communicated the offer of settlement to them. The defendants admitted that an offer of settlement was made, but denied that it was withheld from the plaintiffs.
During the trial of the instant action, Miriam Bauza testified that the defendants initially informed her that the medical malpractice action had a settlement value of $1,000,000. However, Miriam Bauza acknowledged that, shortly before the underlying trial commenced, the defendants increased their settlement valuation of the case to $2,000,000.
At the conclusion of Miriam Bauza's direct examination, the plaintiffs' counsel was granted permission to reopen the direct examination in order to expressly ask Miriam Bauza what she would have done had the $1,000,000 settlement offer been communicated to her. In response, she testified that she did not give consideration or thought as to what she would have done had the offer been extended to her, but when further pressed by her counsel testified, "I am pretty sure I have [sic] would have accept[ed] it."
"To recover damages for legal malpractice, a plaintiff must prove that the attorney failed to exercise that degree of care, skill, and diligence commonly possessed and exercised by a member of the legal community" (Cannistra v O'Connor, McGuinness, Conte, Doyle, Oleson & Collins, 286 AD2d 314, 315 [2001]; see Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303 AD2d 561, 562 [2003]). "In addition, the plaintiff must establish that the attorney's negligence was a proximate cause of the loss sustained, that the plaintiff incurred actual damages as a direct result of the attorney's actions or inaction, and that but for the attorney's negligence, the plaintiff would have prevailed in...
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Zee Co. v. Williams, Mullen, Clark & Dobbins, P.C.
...asserting constructive fraud must show “that plaintiff was, as a result [of the alleged fraud], injured”). 25.Accord Bauza v. Livington, 836 N.Y.S.2d 645, 647, 40 A.D.3d 791 (App.Div.2007) (“[T]he plaintiff must establish that the attorney's negligence was a proximate cause of the loss sust......
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...534, 867 N.E.2d 385 [internal quotation marks omitted]; see Hamoudeh v. Mandel, 62 A.D.3d 948, 949, 880 N.Y.S.2d 674;Bauza v. Livington, 40 A.D.3d 791, 836 N.Y.S.2d 645). Even if a plaintiff establishes the first prong of a legal malpractice cause of action, the plaintiff must still demonst......