VDR REALTY CORP. v. MINTZ

Order unanimously modified on the law and as modified affirmed without costs, in accordance with the following memorandum: Factual allegations of the complaint to the effect that defendant attorney unreasonably delayed the prosecution of a landlord-tenant holdover proceeding and engaged in dilatory tactics, thereby increasing the attorney's fee and causing other consequential damages, state a cause of action for legal malpractice (see, Wolstencroft v. Sassower, 124 A.D.2d 582; 2 Mallen and Smith, Legal Malpractice § 24.15 [3d ed]; Note, Liability of an Attorney in the Conduct of Litigation, 12 Syracuse L Rev 494, 497 [1961]). Plaintiff VDR Realty Corp. may recover damages even though it was successful in the underlying action (see, Wolstencroft v. Sassower, supra; Skinner v. Stone, Raskin Israel, 724 F.2d 264; 76 N.Y. Jur 2d, Malpractice, § 44). Accordingly, we modify the order by denying defendants' motion to dismiss the complaint for failure to state a cause of action.

No issue was raised in the brief or reply brief regarding the court's imposition of a sanction for a frivolous cross motion for leave to enter a default judgment. That issue was, therefore, waived and is not properly before the court (see, Velte v. Jainew Enters., 122 A.D.2d 544).