The law is well established that in order to succeed in a legal malpractice suit, the plaintiff must demonstrate that he or she would have recovered in the underlying action but for the negligence of the attorney. ( Parker Chapin Flattan Klimpl v Daelen Corp., 59 A.D.2d 375; Schmitt v McMillan, 175 App. Div. 799.) In that regard, proof of the collectability of the judgment is part of the plaintiff's affirmative case. (See Reynolds v Picciano, 29 A.D.2d 1012.) The fact that defendant pleaded as a defense that the plaintiff would have been unable to obtain or collect a judgment against the defendants in the underlying personal injury action in no way relieves the plaintiff from its burden. in that respect.
Concur — Asch, J.P., Silverman, Milonas and Kassal, JJ.