Second. Grace counterclaims for malpractice resulting from Condren's purportedly inadequate representation of Grace in the Phillips Nizer action and Condren's failure to take on appeal therefrom.
The components of a legal malpractice action in New York are: (1) the existence of an attorney-client relationship, (2) negligence on the part of the attorney or some other conduct in breach of the relationship, (3) proximate causation, and (4) proof that but for the attorney's alleged negligence the client would have succeeded in the underlying cause of action. Hanlin v. Mitchelson, 794 F.2d 834, 838 (2d Cir. 1986) (citing Fidler v. Sullivan, 93 A.D.2d 964, 463 N.Y.S.2d 279, 280 (3d Dep't 1983); N.A. Kerson Co. v. Shayne, Dachs, Weiss, Kolbrenner, Levy and Moe Levine, 59 A.D.2d 551, 397 N.Y.S.2d 142, 144 (2d Dep't 1977) (Suozzi J. concurring) aff'd, 45 N.Y.2d 730, 408 N.Y.S.2d 475, 476, 380 N.E.2d 302 (1978) (affirming for reasons stated in concurrence of Suozzi, J)).
Although Condren's ethical violations certainly rise to the level warranting forfeiture of his legal fees respecting the Phillips Nizer action it does not automatically follow, without evidence which satisfies all of the above-stated factors, that Grace has established a cause of action sounding in legal malpractice.
But here, Grace's protests are not substantiated by the weight of the evidence. Additionally, given Judge Haight's overwhelming approval respecting the merits of Phillips Nizer's claim (pltf's exh. 7), and based on the testimony adduced at trial, it cannot be said that Condren's efforts in orchestrating Grace's trial defense, while unsuccessful, fell outside the realm of adequate representation. Thus, Grace's second counterclaim for purported legal malpractice is hereby barred.
In accordance with the foregoing Findings and Conclusions pursuant to Rule 52(a):
First, with respect to Condren's claim for breach of the Withdrawal Agreement the court awards damages to Condren in the amount of $ 50,000. Since the record is unclear as to the precise date, prior to suit, when royalties equaling this amount were first issued under the Second Koppen Contract, Condren is awarded prejudgment interest at a rate of nine percent (9%) per annum from the time of commencement of this action, August 14, 1984. See Brent v. Keesler, 32 A.D.2d 804, 805, 302 N.Y.S.2d 349, 351 (2d Dep't 1969); see also NY CPLR §§ 5001, 5004.
Second, Condren's claim for $ 18,060 for legal fees arising from Condren's representation of Grace in the Phillips Nizer action is dismissed and Grace is excused from payment.
Third, Grace's counterclaims for breach of the Assignment contract and for legal malpractice are also dismissed.
Fourth, each party will bear its own attorneys' fees and costs.
Accordingly, the Clerk is directed to: (1) enter judgment in favor of Condren for $ 50,000, with prejudgment interest at the rate of 9% per annum, commencing on August 14, 1984, as to his first contract claim for breach of the Withdrawal Agreement; (2) dismiss Condren's second claim for $ 18,060 in legal fees in favor of Grace; (3) dismiss both of Grace's counterclaims for breach of the Assignment contract and for legal malpractice, in favor of Condren.
Dated: New York, New York
January 30, 1992
Bernard Newman, U.S.D.J. by designation