Kahan Jewelry Corp. v. Rosenfeld

—Order, Supreme Court, New York County (Marilyn Shafer, J.), entered April 13, 2001, which, inter alia, granted defendants’ motion pursuant to CPLR 3211 to dismiss plaintiffs’ first and second causes of action, unanimously affirmed, with costs. The first cause of action, alleging legal malpractice by defendants in the course of their representation of plaintiffs in a mortgage foreclosure action, was properly dismissed with leave to replead since, in view of the circumstance that the foreclosure action was still pending at the time of defendants’ motion, plaintiffs had not yet sustained any actual damages attributable to the alleged malpractice (see, IGEN, Inc. v White, 250 AD2d 463, 465-466). The second cause of action, alleging legal malpractice by defendants in their defense of plaintiffs in an action against them for fraud and conversion brought by H.B. International, Ltd., and in the prosecution of a related action by plaintiffs against H.B. International, was also properly dismissed. Plaintiffs are collaterally estopped from relitigating their claim that defendants’ representation of them in the H.B. International actions was vitiated by an advocate-witness conflict of interest, the identical claim having been litigated by them to unsuccessful conclusion within the H.B. International actions. We have considered plaintiffs’ remaining arguments and find 262 them unavailing. Concur—Tom, J.P., Buckley, Ellerin, Rubin and Gonzalez, JJ.