VDR Realty Corp. v. Mintz

Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: Factual allegations of the 987 complaint to the effect that defendant attorney unreasonably delayed the prosecution of a landlord-tenant holdover proceeding and engaged in dilatory tactics, thereby increasing the attorney’s fee and causing other consequential damages, state a cause of action for legal malpractice (see, Wolstencroft v Sassower, 124 AD2d 582; 2 Hallen and Smith, Legal Malpractice § 24.15 [3d ed]; Note, Liability of an Attorney in the Conduct of Litigation, 12 Syracuse L Rev 494, 497 [1961]). Plaintiff VDR Realty Corp. may recover damages even though it was successful in the underlying action (see, Wolstencroft v Sassower, supra; Skinner v Stone, Raskin & Israel, 724 F2d 264; 76 NY Jur 2d, Malpractice, § 44). Accordingly, we modify the order by denying defendants’ motion to dismiss the complaint for failure to state a cause of action. No issue was raised in the brief or reply brief regarding the court’s imposition of a sanction for a frivolous cross motion for leave to enter a default judgment. That issue was, therefore, waived and is not properly before the court (see, Velte v Jainew Enters., 122 AD2d 544). (Appeal from order of Supreme Court, Kings County, Held, J.—dismiss complaint.) Present—Doerr, J. P., Denman, Balio, Lawton and Davis, JJ.