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WAGNER DAVIS P.C., plf-res, v. ROSA GARGANO def-ap

12121. WAGNER DAVIS P.C., plf-res, v. ROSA GARGANO def-ap — Gunilla Perez-Faringer, White Plains, for ap — Porzio, Bromberg & Newman, P.C., New York (Bonnie Reid Berkow of counsel), for res — Order, Supreme Court, New York County (George J. Silver, J.), entered August 20, 2013, which granted plaintiff's motion for summary judgment and ordered a hearing to determine the amount of attorney's fees to which plaintiff is entitled, unanimously affirmed, without costs.

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12121. WAGNER DAVIS P.C., plf-res, v. ROSA GARGANO def-ap — Gunilla Perez-Faringer, White Plains, for ap — Porzio, Bromberg & Newman, P.C., New York (Bonnie Reid Berkow of counsel), for res — Order, Supreme Court, New York County (George J. Silver, J.), entered August 20, 2013, which granted plaintiff’s motion for summary judgment and ordered a hearing to determine the amount of attorney’s fees to which plaintiff is entitled, unanimously affirmed, without costs.

In this action for unpaid legal fees, defendants asserted a counterclaim for legal malpractice alleging that they would have prevailed on a motion for a preliminary injunction in the underlying action commenced by defendants against their neighbors over a retaining wall between their properties, if it had been made earlier by plaintiff. However, defendants failed to establish that they would have been successful on the motion absent counsel’s delay (see Warshaw Burstein Cohen Schlesinger & Kuh, LLP v. Longmire, 106 AD3d 536, 536 [1st Dept 2013], lv dismissed 21 NY3d 1059 [2013]). In any event, plaintiff’s delay while a new expert prepared a report on the challenged retaining wall, was a reasonable strategic decision that cannot form the basis of a malpractice claim (Morrison Cohen Singer & Weinstein v. Zuker, 203 AD2d 119, 119 [1st Dept 1994]).

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