Pfeffer v. Pernick

—Order, Supreme Court, New York [263] County (Carol Huff, J.), entered October 8, 1998, which, to the extent appealed from, denied defendants’ motion for summary judgment dismissing plaintiff’s legal malpractice claim, unanimously affirmed, without costs. The motion court properly denied defendants’ motion for summary judgment dismissing plaintiff’s legal malpractice claim since issues of fact exist as to whether plaintiff’s damages were proximately caused by her own or defendants’ conduct (see, Estate of Nevelson v Carro, Spanbock, Kaster & Cuiffo, 259 AD2d 282). In addition, we find that an issue of fact exists with respect to whether plaintiff’s misconduct in eavesdropping on the conversations of her employers rose to the level of intentional participation in a criminal act so serious as to warrant denial of recovery (see, Barker v Kallash, 63 NY2d 19, 25-26; Symone T. v Lieber, 205 AD2d 609). We have considered defendants’ remaining contention and find it to be without merit. Concur—Nardelli, J. P., Tom, Lerner, Rubin and Saxe, JJ.