By partin a memorandum by McGuire, J. as follows:
McGUIRE, J. (concurring in part, dissenting in part) I agree with the majority that the Surrogate had jurisdiction to hear and decide petitioner’s application and appellant’s counterclaim, and that the Surrogate properly denied appellant’s motion for recusal. I believe, however, that the Surrogate erred in granting that aspect of petitioner’s motion which sought dismissal of appellant’s legal malpractice counterclaim. Accordingly, I respectfully dissent. “When evidentiary material is considered [on a motion pursuant to CPLR 3211(a)(7)], the criterion is whether the proponent of the pleading has a cause of action, not whether he has stated one, and, unless it has been shown that a material fact as claimed by the pleader to be one is not a fact at all and unless it can be said that no significant dispute exists regarding it . . . dismissal should not eventuate” (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). To state a cause of action for legal malpractice, a party must establish that the attorney was negligent, that the negligence was a proximate cause of the loss sustained, and actual damages (Brooks v Lewin, 21 AD3d 731, 734 [2005]). A party may establish liability based on loss of a settlement opportunity where the party can establish that, but for the attorney’s negligence, he would have accepted the settlement offer (see Masterson v Clark, 243 AD2d 411, 412 [1997]; see also Rubenstein & Rubenstein v Papadakos, 31 AD2d 615 [1968], affd 25 NY2d 751 [1969]; cf. Cannistra v O’Connor, McGuinness, Conte, Doyle, Oleson & Collins, 286 AD2d 314 [2001], lv denied 97 NY2d 611 [2002]). Here, appellant’s malpractice claim is based on petitioner’s alleged negligence in erroneously advising appellant that he could prove the decedent’s lack of testamentary capacity through certain of the decedent’s writings, and that, but for this erroneous advice, appellant would have accepted the proponent’s settlement offer in the probate proceeding. Based on the evidence in the record, particularly appellant’s answer and affidavit in opposition to petitioner’s motion to dismiss, appellant has a cause of action for legal malpractice. Appellant specifically averred that he would have accepted the settlement offer had petitioner properly evaluated the merits of his objections to probate of the will and correctly advised appellant of his chances of success thereon. Therefore, appellant’s counterclaim for legal malpractice should be reinstated (see Rubenstein & Rubenstein v Papadakos, supra; cf. Cannistra v O’Connor, McGuinness, Conte, Doyle, Oleson & Collins, supra; Masterson v Clark, supra). The majority relies in part on petitioner’s claim that she actively encouraged a settlement and that appellant and his brother refused to accept it. These assertions, even assuming their truth, do not undercut appellant’s malpractice claim in the slightest. Fairly read, appellant’s malpractice claim is that he would have accepted the settlement offer if petitioner had given him correct advice about his prospects for success on his challenges to the probate of the will. That appellant rejected the settlement offer for other reasons good, bad or otherwise hardly negates his contention that he would have accepted it but for petitioner’s alleged malpractice. If the majority maintains that this contention is a “conclusory legal argument,” the majority errs; it is an assertion of fact, what appellant would have done. To the extent the majority relies on this contention being a “bare” or “unsupported” allegation, that would only underscore that the majority is improperly resolving the issue of credibility against appellant on petitioner’s motion to dismiss pursuant to CPLR 3211. This constitutes the decision and order of the Supreme Court, Appellate Division, First Department.
