PFEFFER v. PERNICK

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 A.D.2d 282, 686 N.Y.S.2d 404, lv denied ___ N Y 2d ___, 1999 N.Y. Lexis 5188). 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 N.Y.2d 19, 25-26; Symone T. v. Lieber, 205 A.D.2d 609).

We have considered defendants' remaining contention and find it to be without merit.

THIS CONSTITUTES THE DECISION AND ORDER OF SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.