Ofman v. Ginsberg

• Decision Date: 15 November 2011
• Citation: 933 N.Y.S.2d 103,89 A.D.3d 908,2011 N.Y. Slip Op. 08334
• Parties: Mendel E. OFMAN, appellant, v. Steven E. GINSBERG, etc., respondent.
• Court: New York Supreme Court — Appellate Division

2011 N.Y. Slip Op. 08334
89 A.D.3d 908
933 N.Y.S.2d 103

Mendel E. OFMAN, appellant,
v.
Steven E. GINSBERG, etc., respondent.

Supreme Court, Appellate Division, Second Department, New York.

Nov. 15, 2011.

[933 N.Y.S.2d 104]

Andrew Lavoott Bluestone, New York, N.Y., for appellant.

Wenig, Saltiel & Johnson, LLP, Brooklyn, N.Y. (Meryl L. Wenig of counsel), for respondent.

WILLIAM F. MASTRO, J.P., RANDALL T. ENG, ARIEL E. BELEN, and L. PRISCILLA HALL, JJ.

[89 A.D.3d 908] In an action to recover damages for legal malpractice and breach of contract, the plaintiff appeals from a judgment of the Supreme Court, Kings County (Baily–Schiffman, J.), entered May 6, 2010, which, upon an order of the same court dated February 4, 2010, granting the defendant's motion, denominated as one in limine to preclude the plaintiff from adducing certain evidence at trial and, in effect, directing the award of judgment as a matter of law to the defendant at the close of the plaintiff's opening statement, is in favor of the defendant and against him dismissing the complaint.

ORDERED that the judgment is reversed, on the law, on the facts, and in the exercise of discretion, with costs, the defendant's motion is denied, the complaint is reinstated, the order is modified accordingly, and the determination in the order, in effect, directing the award of judgment as a matter of law to the defendant at the close of the plaintiff's opening statement is vacated.

The plaintiff commenced this action to recover damages for legal malpractice and breach of contract. He alleged that the defendant, who represented him in a separate action, had deviated from good and accepted legal practice while negotiating the language of a stipulation of settlement, and that this failure to render competent legal services proximately caused him to sustain actual and ascertainable damages. After jury selection, and after the parties made their opening statements at trial, the defendant, based on the doctrine of collateral estoppel, made a motion, denominated as one in limine to preclude the plaintiff from adducing any evidence, at trial, on the issue of whether the stipulation of settlement was intended to act as a general release. The Supreme Court granted the motion and then, having precluded all evidence related to the sole deviation alleged by the plaintiff, directed the award of judgment as a matter of law to the defendant. This was error.

[89 A.D.3d 909] Although the defendant characterized his motion...