Full opinion text
MEMORANDUM ORDER CEDARBAUM, District Judge. In a thorough and thoughtful Report and Recommendation, Magistrate Judge Dolinger has recommended that defendants’ motion for summary judgment be granted as to all claims against John Mul-vehill. He has recommended that the motion be granted as to all claims against Urban Mulvehill except the portion of plaintiffs’ breach of fiduciary duty claim which alleges that Urban Mulvehill failed to disclose to plaintiff that he was receiving a portion of John Mulvehill’s fee. Finally, he has recommended that John Mul-vehill’s motion for sanctions and preclusion of the use of certain evidence be denied. No objections have been filed within the ten days provided by 28 U.S.C. § 636(b)(1). After carefully reviewing the attached Report and Recommendation, I accept it in its entirety. SO ORDERED. REPORT & RECOMMENDATION DOLINGER, United States Magistrate Judge. To The Honorable Miriam Golden Cedarb-aum, District Judge: Following a car accident in which his wife was killed and his son injured, Richard Schweizer retained attorney John Mul-vehill to pursue a wrongful-death and personal-injury lawsuit against the driver of the other vehicle involved in the collision and the driver’s employer. After a suit was filed in federal court, the parties reached a settlement by which the plaintiff was to receive approximately $1 million. On behalf of his son and himself, Schweizer now sues his attorney in that previous action and the attorney’s cousin, Urban Mulvehill, Esq., with whom John Mulvehill was to share fees on the wrongful-death claim. Following completion of discovery, defendants have moved for summary judgment on all of plaintiffs claims. In addition, John Mulvehill seeks an order (1) precluding plaintiff from using certain salary information obtained in response to a non-party subpoena and (2) imposing sanctions on plaintiff in connection with the subpoena. A. Plaintiffs Claims Plaintiff filed this lawsuit in December 1995, asserting five claims against John and Urban Mulvehill, all related to their representation of him in Schweizer v. Skyway Transportation, 90 Civ. 0979 (S.D.N.Y.) (JFK) (“the underlying action”). First, Schweizer alleges that both attorneys committed legal malpractice and “gross legal malpractice” (1) by negligently preparing and prosecuting the underlying action, (2) by failing to inform him that he might compensate John Mulvehill other than through a one-third contingency arrangement, and (3) by failing to disclose conflicts of interest,, presumably including the fact that Urban Mulvehill would share a part of the contingency fee recovered and that John Mulvehill was employed by an insurance company. {See Compl. ¶¶ 59, 74-78). Plaintiffs second claim is for breach of contract. He asserts principally that John Mulvehill breached the terms of the retainer agreement by settling the underlying action for $1 million when he had promised to prosecute the case for more than that. {Id. at ¶ 80). He also asserts that the retainer agreement was breached for the reasons stated in his malpractice claim. {Id. at ¶¶ 81-84). Third, plaintiff asserts a claim for fraud, alleging that the defendants made misrepresentations to him, that he relied upon those misrepresentations, and that he was thereby damaged. {Id. at ¶¶ 86-88). Specifically, he alleges that defendants either misstated or withheld the following information: (1) they did not disclose that there were fee arrangements besides a contingency by which plaintiff could have agreed to pay John Mulvehill; (2) John Mulvehill falsely stated that he would prosecute the underlying action for more than the $1 million limit of the insurance policy; (3) defendants concealed conflicts of interest in handling his case; (4) defendants misled plaintiff into believing that the underlying action was a more complex case than it was; (5) defendants misrepresented that it would be impossible to recover more than $1 million from the defendants in the underlying action; (6) defendants falsely asserted that plaintiff had made statements that he had not; and (7) defendants failed to disclose that Urban Mulvehill would receive a fee for referring the underlying action to John Mulvehill. {Id. at ¶ 86(A-G)). Fourth, plaintiff asserts that defendants violated section 487 of the New York Judiciary Law by misleading the Surrogate’s Court through the presentation of false information and the omission of material information. {Id. at ¶¶ 90-92). These alleged misrepresentations and omissions are the same as those alleged in connection with the fraud claim. {Id. at ¶ 90(A-G)). Finally, plaintiff makes a claim for breach of fiduciary duty. He alleges that defendants were in a fiduciary relationship with him and that by acting in their own interests in settling the case for the policy limit, and by withholding information, including the existence of a referral fee and John Mulvehill’s employment, the attorneys breached that duty. (Id. at ¶¶ 94-100). Plaintiff demands $1 million in compensatory damages for each of his claims and $3 million in punitive damages for each claim except the one for breach of contract. (Id. at 27-28 (¶¶ 1-5)). B. Defendants’ Summary Judgment Motion Defendants have filed a motion seeking summary judgment on all of plaintiffs claims. First, defendants assert that the claims of legal malpractice, breach of contract and breach of fiduciary duty are barred, under the doctrine of collateral estoppel, because the fairness of the attorney’s fee has already been determined by the Surrogate’s Court of Orange County when it approved the settlement in the underlying action. (Def.’s Mem. at 17-19). Second, defendants also assert that the plaintiff cannot establish his claim of legal malpractice. Insofar as the malpractice claim relates to John Mulvehill’s failure to suggest alternatives to the agreed-upon contingency fee, defendants contend that prior to signing the retainer agreement no attorney-client relationship existed, and hence Mulvehill was under no obligation to suggest other fee arrangements. (Id. at 21). As for the balance of the malpractice claim, defendants contend that they should prevail because, in light of the favorable settlement obtained in the underlying action, plaintiff cannot establish that defendants breached any duty to him or that any alleged breach proximately caused actual damages, that is, that, but for negligence on the part of the attorneys, plaintiff would have received a more favorable result. (Id. 25-29). Third, defendants contend that because the results obtained in the underlying action were in the client’s best interest, plaintiff has failed to establish a breach of fiduciary duty. (Id. at 25). Fourth, defendants contend that insofar as plaintiffs allegations of fraud and breach of contract are indistinguishable from the malpractice claim, they are barred under New York law. (Id. at 30-31). Alternatively, they argue that, in any event, the fraud claim cannot be sustained because plaintiff is unable to show injury from any alleged misrepresentations or omissions. (Id. at 26-29). Fifth, defendants contend that plaintiff cannot establish that they violated New York’s Judiciary Law (id. at 32-33), and that, in any event, this claim is barred by the statute of limitations. (Id. at 34-35). Finally, defendants contend that plaintiffs claim for punitive damages should be dismissed. We conclude that plaintiff has failed to demonstrate a triable issue of material fact with respect to any of his claims, except the claim that Urban Mulvehill breached his fiduciary duty in failing to disclose that he would share in the contingency fee payable to John Mulvehill. C. Facts and Pnor Proceedings On May 16, 1989, plaintiffs wife, Karen Schweizer, was killed when a tractor-trailer crossed the center line of a two-lane roadway and hit her vehicle head-on. (Compl. at ¶ 11; Decl. of Cheryl Riess Curtis, Esq., dated April 6, 1999 (“PI. Decl.1”), Ex. 1 (police accident report) at second page). Mrs. Schweizer was 35 at the time and a homemaker, although she had apparently planned to go back to work when her son started school. (See Dep. of Richard T. Schweizer at 5-6, 11-12). Plaintiffs son, Scott Schweizer, then five years old, was a passenger in his mother’s car when the accident occurred. (See Compl. at ¶ 12). He suffered a broken arm and other minor injuries, as well as some degree of psychological trauma. (See PI. Decl. 1, Ex. 4 (hospital report) & Ex. 7 (January 5, 1999 psychiatric evaluation by Dr. Lawrence Scheff); Deck of Geoffrey W. Heineman, Esq., dated April 27, 1999 (“Def.Decl.2”), Ex. E (October 6, 1990 evaluation by Dr. Scheff). The tractor-trailer that was involved in the accident was owned by Skyway Transportation Incorporated (“Skyway”). (See Dep. of James J. Lenihan, President of Skyway, Jan. 6, 1998, at 42-43). It was insured for $1 million by American Reliance Insurance Companies (“Reliance”). (See id. at 43, 47; see also PI. Deck 1, Ex. 14 (Oct. 19,1989 letter to J. Mulvehill from Lesley Klotz, Assistant Casualty Claims Supervisor for Reliance)). Shortly following the accident, in June 1989, plaintiff contacted Urban Mulvehill in order to have a will drafted. (See Compl. at ¶ 16; Dep. of Urban S. Mulve-hill, Esq. (“USM Dep.”), at 143). During the course of their initial meeting, they discussed the circumstances of Mrs. Schweizer’s death, and Mulvehill recommended his cousin John Mulvehill as an attorney with experience in wrongful-death matters. (Schweizer Dep. at 17-20; USM Dep. at 154). On June 13, 1989, plaintiff first met with John Mulvehill, and he ultimately retained him, on September 23, when he signed an agreement entitling John Mulvehill to a one-third contingency fee on any recovery in the underlying action. (See Schweizer Dep. at 21-23, 68-71; Compl. at ¶ 39; Def. Decl. 1, Ex. H (Retainer dated Sept. 23, 1989)). The retainer was simply the standard Blumberg form— which gives the attorney “the exclusive right to take all legal steps to enforce the said claim,” provided he “agrees not to settle th[e] action ... without [the undersigned’s] written consent.” (Def.Decl.1, Ex. H). It also explains that the one-third fee is “33-1/3 percent, of the sum recovered, whether recovered by suit, settlement or otherwise” and that the “percentage shall be computed on the net sum recovered after deducting taxable costs and disbursements.” (Id.). At the second meeting with John Mulve-hill, in September 1989, Schweizer expressed concern about what he correctly believed to be the $1 million limit of Sky-way’s insurance policy. According to plaintiff, he received some indication from Mulvehill that more than $1 million was potentially recoverable. (See Aff. of Richard T. Schweizer, sworn to April 6, 1999, at ¶ 2 (Mulvehill expressly represented that the policy limit was not a limit on recovery); Schweizer Dep. at 81, 165 (“Q: When did John Mulvehill promise you to prosecute the case for more than the $1 million policy? A: When we had our meeting on the 23rd of September 1989, he mentioned it was possible to hold the insurance company liable for an amount more that the million dollar policy limit.”), 209 (“When I signed the retainer [John Mulvehill] led me to believe that it was possible to achieve a settlement greater than the limit — the assumed limits of the insurance policy, i.e. $1 million.”), 211 (“he said to me ‘Don’t worry’ [about the policy limit]”), 340, 516). During his discussions with Mulvehill, Schweizer expressed his interest in retaining a lawyer on a more favorable basis than a flat one-third contingency fee. (See, e.g., Schweizer Dep. at 263; Dep. of John H. Mulvehill (“JHM Dep.”), at 611 (Schweizer asked if John Mulvehill would consider a 30% contingency)). Mulvehill indicated that 33]é percent was the standard fee, and that although Schweizer might be able to find a lawyer to take less than one-third, that was unlikely. (Schweizer Dep. at 58; see also id. at 30 (“John [Mulvehill] said that all other personal injury attorneys have a one-third contingency fee, and he showed me the form”) (emphasis added)). Schweizer’s pursuit of either another attorney or a more favorable payment term was limited; he interviewed one other attorney, who also proffered a standard one-third-fee form (see Schweizer Dep. at 65-66), before indicating that he wished to retain John Mulvehill. Sometime after the first meeting with John Mulvehill, but before the second meeting in September 1989 — and the signing of the retainer — plaintiff received a settlement offer from American Reliance of at least $600,000.00. (Compl. at ¶ 27; Schweizer Dep. at 71-72, 75, 78, 80; JHM Dep. at 697). Plaintiff understood the offer to be for cash' — as opposed to any form of structured settlement — and decided not to accept it, choosing instead to retain John Mulvehill because, he alleges, Mulve-hill had told him that he “shouldn’t be concerned about the limits of the [insurance] policy in that it’s possible to hold an insurance company liable for an amount greater than the limits of that policy.” (Schweizer Aff. at ¶¶ 3, 8; Compl. at ¶ 38-39; Schweizer Dep. at 81). During the time of Schweizer’s preliminary negotiations with and subsequent representation by John Mulvehill, Mulve-hill was working full-time as an attorney for Liberty Mutual Life Insurance Company, primarily defending its insureds. He had been a salaried employee of Liberty Mutual since 1961, in legal departments that bore the names of the insurance company’s most senior in-house counsel. (JHM Dep. at 156-58). From 1974 to 1991 Liberty Mutual’s legal department operated under the name Mulvehill & O’Brien. (Id. at 200-01). Mulvehill also maintained a solo private practice, with a letterhead bearing his name and his home address. (See, e.g., PL Decl. 1, Ex. 24). In that practice, Mulvehill handled personal-injury cases as well as other legal matters. (See JHM Dep. at 202-07). In 1991, when it came to the attention of Liberty Mutual that John Mulvehill was taking on cases beyond those he was handling for its insureds, the company asked Mulvehill to resign. (See PL Decl. 1, Ex. 26 (May 17, 1991, letter from A. Paul Goldblum to John W. Allen, Esq.) & Ex. 19 (copy of Liberty Mutual’s no-outside-practice policy)). Plaintiff did not know of John Mulvehill’s relationship with Liberty Mutual (see JHM Dep. at 369), and asserts that had he known that Mulvehill had full-time employment and was primarily involved in defending personal-injury cases for an insurance carrier, he would not have retained him. (Schweizer Aff. at ¶¶ 5, 6). Sometime after Schweizer retained John Mulvehill, Mulvehill and his cousin Urban Mulvehill agreed to an apportionment of any contingency fee in the underlying action whereby John Mulvehill would receive 80 percent and Urban 20 percent. (See JHM Dep. at 615; Retainer Statement, signed by Urban S. Mulvehill, Esq., dated Jan. 18, 1990). John Mulvehill informed Schweizer that Urban would perform some legal duties with respect to the wrongful-death case (JHM Dep. at 370 (having told Schweizer “I would have conflicts in attending conferences or other scheduled meetings ... and that I would be using the services of Urban Mulvehill on those occasions”)), but Schweizer was never informed of Urban Mulvehill’s financial interest in the contingency fee. (Schweizer Aff. at ¶ 4; Schweizer Dep. at 214). Schweizer first became aware of this arrangement when he received a closing statement in February of 1992, following the Surrogate Court’s approval of the Offer to Compromise, indicating that Urban Mulvehill was receiving approximately $63,000. (See Schweizer Dep. at 215, 233, 290). In the period between the retention of John Mulvehill and the settlement of the underlying action, plaintiff had repeated contacts with Urban Mulvehill and his firm, O’Neill, DiManno & Kelly, in connection with the underlying action. Specifically, meetings took place in the conference room at O’Neill, DiManno (id. at 309, 320); plaintiff picked up checks and other documents there (id. at 284), and was forwarded checks and other documents by the firm (id. at 286); plaintiff received correspondence from Urban Mulvehill (id. at 292 (Urban Mulvehill advised plaintiff that the Surrogate had not yet acted on the application for approval of the compromise)); and many letters that plaintiff saw indicated that carbon copies were being sent to Urban Mulvehill. (See, e.g., id. at 281, 310, 312, 315). Plaintiff contends that he believed that John Mul-vehill was merely keeping his cousin apprised of developments in the ease (id. at 203 (as a “professional courtesy”)), and that Urban Mulvehill’s office was convenient to his own downtown office (id. at 117, 285, 287) and to the Southern District courthouse, where filings were made. (Id. at 93). In November 1989 Richard Schweizer was appointed administrator of his wife’s estate by the Surrogate’s Court of Orange County. In February 1990, John Mulve-hill, on behalf of Schweizer, filed a personal injury and wrongful death action in this Court against Skyway and George Bell, seeking damages of $23,500,000. (Def. Decl. 1, Ex. J (Compl. in Schweizer v. Bell, 90 Civ. 0979 (S.D.N.Y.) (JFK))). Among the tasks that John Mulvehill performed in connection with the underlying action, he engaged in some investigation of Skyway’s assets. (See JHM Dep. at 1216; PL Decl. 1, Ex. 23 (Aug. 23, 1990 letter from U. Mulvehill to J. Mulvehill conveying information regarding possible coverage by another insurance carrier and forwarding Dunn & Bradstreet report on Skyway)). At the time of the accident, Skyway’s assets consisted of five trucks, a house trailer, a pick-up truck, tools and equipment (see Jan. 6, 1998 Lenihan Dep. at 51-55), and its debts consisted of taxes owed to the IRS and to the State of New Jersey. (See id. at 72, 120). It does not appear that it had liability coverage beyond the Reliance policy (see, e.g., Jan. 26, 1998 Lenihan Dep. at 43), although the records at the Interstate Commerce Commission indicated that Skyway was insured by Aetna for $750,000.00. (See id. at 43, 57; PL Decl. 1, Ex. 23 (Aug. 23,1990 letter from U. Mulvehill to J. Mulvehill)). In 1993, two years after the settlement of the underlying action, Skyway was dissolved, and the company was re-incorporated as Highway Freight Lines Incorporated (“Highway”), apparently in an effort to reduce the amount of its insurance premium. (See Dep. of James J. Lenihan, July 30, 1998, at 43-44; Pl. Decl. 1, Ex. 28 (Corporate Resolution of Skyway dated Aug. 6, 1993)). Skyway “sold” its five tractor-trailers to Highway for $50,000 and the proceeds were used to pay off tax liens. (See Jan. 6, 1998 Lenihan Dep. at 120, 130). A house trailer and pick-up truck were discarded due to age. (See id. at 53, 55). As a consequence of the accident, the truck driver, George Bell, pled guilty to a violation of the New York Vehicle and Traffic Law and had his license revoked. (See Compl. at ¶ 13). He did not return to work and died a short time later. (See Jan. 6, 1998 Lenihan Dep. at 63-64). George Bell had no assets with which to satisfy a judgment. (See Schweizer Dep. at 154). In the course of litigation, John Mulve-hill retained the services of Thomas Kersh-ner, an economist, in order to evaluate the economic loss resulting from the death of Karen Schweizer. The economist valued that loss, discounted to present value, at $1,042,462. (Def. decl. 1, Ex. L (Appraisal of Economic Loss) at 23). Defendants in the underlying action also obtained an analysis of the economic loss, and their economist valued the loss, discounted to present value, at $357,975. (Id., Ex. M (Report of Edmund Mantell, PhD.) at 3). In April 1991, Schweizer and the two Mulvehills met at the offices of O’Neill, DiManno & Kelly and discussed the underlying action. (See Schweizer Dep. at 133; USM Dep. at 394-98, 890-91). At the meeting they discussed the risks of going forward with the trial, the plaintiffs’ and defendants’ respective expert reports analyzing economic loss, the possibility that Skyway would present some evidence of contributory negligence on the part of Mrs. Schweizer, the evidence of her instantaneous death — affecting plaintiffs prospects of recovering for pre-impact terror— and the likelihood of being able to recover on a judgment in excess of the existing insurance coverage. (See USM Dep. at 395-96, 891; see also Schweizer Dep. at 145-53). At the conclusion of the meeting it was decided that plaintiff, by his attorneys, would send a “bad-faith letter” to Reliance, demanding a settlement equal to Skyway’s policy-limit. (See Schweizer Dep. 153-55; USM Dep. at 396). In May 1991, Reliance offered to settle the underlying action for $985,000. This sum reflected the $1 million limit of Skyway’s policy, less $15,000 already paid to plaintiff for damage to his vehicle pursuant to no-fault insurance coverage. (Schweizer Dep. at 166, 171, 172,176, 225). Plaintiff agreed to the offer, with an allocation of $50,000 for Scott’s personal injury claim and $935,-000 for the wrongful-death claim. (Id. at 225, 227). Subsequent to the successful settlement discussions, Schweizer, by his attorneys, petitioned the Surrogate’s Court to approve the settlement and to grant both attorney’s fees and -distributions. (Def.Decl.l, Ex. O). Before the court issued a decision on the petition, Schweizer submitted a letter to Surrogate Joseph G. Owen, challenging the amount of attorneys’ fees under the settlement. (Id., Ex. I (Aug. 15, 1991 letter from Schweizer to Judge Joseph G. Owen)). In that letter Schweizer noted that the difference between the offer that he had initially received from the insurance company and the amount of his recovery after deducting attorney’s fees under the current settlement was only 7.3 percent. (Id. at first page). Schweizer further noted the disparity between his son’s recovery of $191,-000 for the loss of his mother and the attorney’s fee of over $300,000 for the preparation of what he called “an uncomplicated and straight forward lawsuit.” (Id. at second page). Schweizer also attached a comparison between the original offer and the settlement. (Id., Ex. I at third page). Schweizer further argued that if the two years of delay between the original offer and the present compromise amount were taken into account, the difference between the two figures would be only 4.5 per cent. (Id.). At the next appearance in Surrogate’s Court, Judge Owen noted that he had both a petition requesting the Court to approve the offer of compromise and the letter from Mr. Schweizer indicating reservations about the attorney-fee arrangement. (Def. Decl. 1, Ex. O (Sept. 9, 1991 Tr.) at 3). The court asked Schweizer whether he wanted to consult with counsel other than John Mulvehill, but the plaintiff declined. (Id.). The Court then adjourned the proceedings to allow Mr. Schweizer to consult with Thomas N. O’Hara, Esq., Scott’s guardian ad litem, and to allow Mr. O’Hara the opportunity to prepare a'report on the adequacy of the settlement and the appropriate attorney’s fee for that portion of the settlement allocated to the child’s wrongful-death claim. The Judge also provided John Mulvehill the opportunity to submit a memorandum of law as to the fee issue. Id. Mr. O’Hara submitted a revised report on September 25, 1991 in which he asserted that the settlement was “prudent” in light of the uncertainty of a trial outcome and “the unlikelihood of collecting any award in excess of the policy limits.” (Id., Ex. R (September O’Hara Report) at ¶ 16). The guardian ad litem noted that the petition for approval of compromise contained language fixing the attorney’s fee at $309,-267.86, and that, because the petition was verified by Mr. Schweizer, he was bound by the judicial admission. (Id. at ¶¶ 27-28). Noting further that both the admission and the retainer agreement were binding only on Schweizer himself — and not on his son — the guardian ad litem recommended that the fee for Scott Schweizer’s share of recovery should be fixed at only 25 per cent. (Id. at ¶ 34). In response to the Surrogate’s invitation, John Mulvehill submitted an Attorney’s Affirmation outlining the work he had performed in connection with the underlying action, including conducting interviews, taking depositions, selecting experts, and investigating defendants’s insurance coverage. (Def. Deck 1, Ex. N at 1-4). Mulvehill also outlined his “professional” opinion regarding the adequacy of the compromise value, the risks inherent in proceeding to trial and the relative prudence of the settlement. (Id. at 7-8). Urban Mulvehill also submitted an affidavit, indicating that he had referred Schweizer to John Mulvehill (Def. Decl. 1, Ex. D (Aff. of U. Mulvehill, sworn to Sept. 16, 1991) at ¶ 2), that the plaintiff had showed an interest in interviewing John Mulvehill but that Schweizer also had had the names of “five or six other attorneys” whom he wished to interview as well (id. at ¶¶ 4-6), and that plaintiff had in fact interviewed three attorneys (id. at ¶ 7) before retaining John Mulvehill. In his affidavit, Urban Mulvehill recounted that his firm had been retained in connection with plaintiffs estate matters (id. at ¶ 8), and set forth the nature of the work that he had performed in connection with the wrongful-death action (id. at ¶ 9) and his opinion that the settlement was “the best possible result.” (Id. at ¶ 18). The affidavit contains no mention, however, of the 80-20 fee-splitting arrangement between the two attorneys. At a subsequent proceeding in Surrogate’s Court, when asked if there was anything else he wished to submit, Schweizer responded in the negative. (Def. Decl. 1, Ex. S (Tr. of Sept. 30, 1991) at 2). On November 22, 1991, Surrogate Owen issued a written decision. The Surrogate adopted the guardian ad litem’s recommendation regarding the one-fourth fee for the portion of the recovery allocated to Scott and found that Richard Schweizer was bound by the one-third fee retainer agreement entered into with John Mulve-hill. (Id., Ex. T at 3-4). The Surrogate subsequently issued a decree restating his ruling and noting that Schweizer had objected to the fee, that the guardian ad litem had submitted a report, and that John Mulvehill had filed two affirmations and Urban Mulvehill had filed an affidavit in the matter. (Id., Ex. 0 at 3). In December 1995, Richard Schweizer commenced this action, asserting his current claims. On April 30, 1999 defendants filed a motion for summary judgment on all claims, which we here address. ANALYSIS I. Standard of Review on Summary Judgment The court may enter summary judgment only if it concludes that there is no genuine dispute as to any material fact and that, based on the undisputed facts, the moving party is entitled to judgment as a matter of law. See, e.g., Scotto v. Almenas, 143 F.3d 105, 114 (2d Cir.1998); D'Amico v. City of New York, 132 F.3d 145, 149 (2d Cir.), cert. denied, 524 U.S. 911, 118 S.Ct. 2075, 141 L.Ed.2d 151 (1998). It is axiomatic that the role of the court on such a motion “ ‘is not to resolve disputed issues of fact but to assess whether there are factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party.’ ” Miner v. City of Glens Falls, 999 F.2d 655, 661 (2d Cir.1993) (quoting Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986), cert. denied, 480 U.S. 932, 107 S.Ct. 1570, 94 L.Ed.2d 762 (1987)); Coach Leatherware Co., Inc. v. AnnTaylor, Inc., 933 F.2d 162, 167 (2d Cir.1991). The movant bears the initial burden of informing the court of the basis for his motion and identifying those portions of the “pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,” that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). In making this judgment, all facts must be viewed in the light most favorable to the non-moving party. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). If the non-moving party has the burden of proof as to a particular issue, the movant may satisfy his initial burden by demonstrating the absence of evidence in support of an essential element of the non-moving party’s claim. See, e.g., Ray Repp & K & R Music, Inc. v. Webber, 132 F.3d 882, 890 (2d Cir.1997), cert. denied, 525 U.S. 815, 119 S.Ct. 52, 142 L.Ed.2d 40 (1998); Gummo v. Village of Depew, 75 F.3d 98, 107 (2d Cir.), cert. denied, 517 U.S. 1190, 116 S.Ct. 1678, 134 L.Ed.2d 780 (1996). If the movant fails to meet his initial burden, the motion will fail even if the opponent does not submit any eviden-tiary matter to establish a genuine factual issue for trial. See Adickes v. S.H. Kress & Co., 398 U.S. 144, 160, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970); BBS Norwalk One, Inc. v. Raccolta, Inc., 117 F.3d 674, 677-78 (2d Cir.1997); Zanghi v. Incorporated Village of Old Brookville, 752 F.2d 42, 46 (2d Cir.1985). If the movant carries his initial burden, the burden shifts to the party opposing the motion to demonstrate a genuine dispute as to one or more of the material facts. See Celotex, 477 U.S. at 322, 106 S.Ct. 2548; B.F. Goodnch v. Betkoski, 99 F.3d 505, 521 (2d Cir.1996), cert. denied sub nom. Zollo Drum Co., Inc. v. B.F. Goodrich Co., 524 U.S. 926, 118 S.Ct. 2318, 141 L.Ed.2d 694 (1998). In doing so, the opposing party cannot rest on “mere allegations or denials” of the facts asserted by the movant, Rexnord Holdings, Inc. v. Bidermann, 21 F.3d 522, 526 (2d Cir.1994), nor can he rely on his pleadings or on merely conclusory factual allegations. He must also “do more than simply show that there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co., Ltd. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986); B.F. Goodrich, 99 F.3d at 521. Rather, he must present specific evidence in support of his contention that there is a genuine dispute as to the material facts. See, e.g., Celotex, 477 U.S. at 324, 106 S.Ct. 2548; Cifarelli v. Village of Babylon, 93 F.3d 47, 51 (2d Cir.1996); West-Fair Elec. Contractors v. Aetna Cas. & Sur. Co., 78 F.3d 61, 63 (2d Cir.1996). To demonstrate a “genuine dispute,” the opposing party must come forward with sufficient evidence to justify a reasonable jury returning a verdict in his favor. See Anderson, 477 U.S. at 248, 106 S.Ct. 2505; Matsushita Elec. Indus., 475 U.S. at 586-87, 106 S.Ct. 1348; Cinema North Corp. v. Plaza at Latham Assocs., 867 F.2d 135, 138 (2d Cir.1989). If, however, “the party opposing summary judgment propounds a reasonable conflicting interpretation of a material disputed fact,” summary judgment must be denied. Schering Corp. v. Home Ins. Co., 712 F.2d 4, 9-10 (2d Cir.1983) (citing New York State Energy Research & Dev. Auth. v. Nuclear Fuel Serv. Inc., 666 F.2d 787, 790 (2d Cir.1981)); Stewart v. Florence Nightingale Health Ctr./Carnegie Partners, Inc., 1999 WL 179373, at *5 (S.D.N.Y. Mar. 31, 1999). II. Collateral Estoppel Defendants assert that plaintiffs claims of malpractice, breach of contract, breach of fiduciary duty and fraud are all barred by the doctrine of collateral estoppel. They contend that plaintiff challenged the propriety of the attorney’s fees before the Surrogate’s Court and that because of that court’s approval of the settlement, including the amount of attorney’s fees, plaintiff is now precluded from claiming malpractice, fraud or breach of fiduciary duty based on the settlement or the asserted unreasonableness of the attorney’s fees. (Def.’s Mem. at 17-20). Plaintiff contends that he did not litigate these issues before the Surrogate’s Court, because he did not then know the facts on which his claims are based and because of that court’s limited jurisdiction. (Pl.’s Mem. at 8-11). The doctrine of collateral estoppel, or issue preclusion, bars subsequent litigation of an issue if the issue in the second action is identical to an issue that was raised, necessarily decided and material in the first action, provided that the party against whom the defense is raised had a full and fair opportunity to litigate the issue in the earlier action. See, e.g., Leather v. Eyck, 180 F.3d 420, 425 (2d Cir.1999) (citing Parker v. Blauvelt Volunteer Fire Co., Inc., 93 N.Y.2d 343, 349, 690 N.Y.S.2d 478, 482, 712 N.E.2d 647 (1999)) (quoting Ryan v. New York Tel. Co., 62 N.Y.2d 494, 500, 478 N.Y.S.2d 823, 826, 467 N.E.2d 487 (1984))); Chisholm-Ryder Co., Inc. v. Sommer & Sommer, 78 A.D.2d 143, 144, 434 N.Y.S.2d 70, 71 (4th Dep’t 1980). The doctrine applies whether or not the tribunals, the causes of action, or the adversaries are the same. See Leather, 180 F.3d at 425; Chisholm-Ryder, 78 A.D.2d at 144, 434 N.Y.S.2d at 71. The burden rests on the litigant claiming the benefit of the former judgment “to prove that the issue he now urges was involved in the prior action either by actual implication or necessary implication,” Chisholm-Ryder, 78 A.D.2d at 144, 434 N.Y.S.2d at 70, and that there was a full and fair opportunity to litigate the decision now said to be controlling. Bomba v. Silberfein, 238 A.D.2d 261, 262, 657 N.Y.S.2d 22, 22 (1st Dep’t 1997); D’Arata v. New York Cent. Mut. Fire Ins. Co., 76 N.Y.2d 659, 666, 563 N.Y.S.2d 24, 26, 564 N.E.2d 634 (1990). Factors to be considered in determining whether there was such a full and fair opportunity to litigate include, inter alia, the nature of the forum; the importance of the issue in the prior proceeding; the incentive and initiative to litigate the issue and the actual extent of such litigation; the competence and expertise of counsel; the availability of new evidence; and the foreseeability of future litigation. See, e.g., Gilberg v. Barbieri, 53 N.Y.2d 285, 292, 441 N.Y.S.2d 49, 51, 423 N.E.2d 807 (1981); Schwartz v. Public Adm’r of County of Bronx, 24 N.Y.2d 65, 72, 298 N.Y.S.2d 955, 961, 246 N.E.2d 725 (1969)); A to Z Assocs. v. Cooper, 161 Misc.2d 283, 288, 613 N.Y.S.2d 512, 517-518 (1993) (citing Ryan, 62 N.Y.2d at 501, 478 N.Y.S.2d at 826, 467 N.E.2d 487). Here the previous adjudication invoked by defendants is the Surrogate Court’s approval of the settlement between plaintiff and Skyway in the underlying action and its approval of the attorney’s fees provided for in the retainer agreement. (Def. Decl. 1, Ex. O (Decree of Surrogate’s Court of Orange Co., Owen, Surr. J., dated Nov. 11, 1991)). The wrongful-death action was filed in the United States District Court for the Southern District of New York. {See id., Ex. A (Compl. in underlying action)). That court had jurisdiction to approve or disprove the adequacy of any settlement upon application of the plaintiff. {See Def. Decl. 1, Ex. P (Order to Compromise and Settlement of Infant’s Claim, Keenan, U.S.D.J, dated July 1, 1991)). The Surrogate’s Court had concurrent jurisdiction with the District Court to authorize an appropriate distribution of the amount of recovery to the persons entitled thereto. (See supra p. 386 n. 9). Plaintiff, through his attorneys, petitioned the Surrogate’s Court for its approval of the compromise reached with Skyway, the defendant in the underlying action. Although that Court addressed plaintiffs objection to the contingency fee as presented to it by Mr. Schweizer’s letter to the Court (Def.Decl.l, Ex. I), it cannot be said that the Court had presented before it — or reached a determination as to — the issues underlying plaintiffs current claims of malpractice, breach of contract, breach of fiduciary duty and fraud. See, e.g., Weiss v. Manfredi 83 N.Y.2d 974, 976, 616 N.Y.S.2d 325, 326, 639 N.E.2d 1122 (1994) (plaintiffs failure to vacate the lower court settlement was not determinative, for preclusion purposes, on plaintiffs claim of malpractice based, in part, on the inadequacy of the settlement); Katash v. Kranis, P.C., 229 A.D.2d 305, 306, 644 N.Y.S.2d 276, 278 (1st Dep’t 1996) (holding that trial court improperly dismissed plaintiffs malpractice claim as collaterally estopped where plaintiffs motion to vacate stipulation in the underlying action had been denied). Specific allegations on which plaintiffs current claims rest — such as the existence of an express promise by John Mulvehill to prosecute the underlying action for more than $1 million and the failure to disclose the fee-splitting arrangement — were not brought to the Surrogate’s attention, and were therefore not fully and fairly litigated. To the extent that defendants argue that the Surrogate’s approval of the fee arrangement bars plaintiff from relitigating the reasonableness of the fee as the basis for a claim of malpractice, fraud and breach of fiduciary duty, the application of collateral estoppel to that specific issue is a somewhat closer question. Attorney’s fees are subject to judicial scrutiny in a variety of contexts. See, e.g., Blanchard v. Bergeron, 489 U.S. 87, 93, 109 S.Ct. 939, 103 L.Ed.2d 67 (1989); Alderman v. Pan Am World Airways, 169 F.3d 99, 102 (2d Cir.1999); Krause v. Rhodes, 640 F.2d 214, 219 (6th Cir.1981) (a contract for contingent fees “should always be subject to the supervision of a court, as to its reasonableness”); Jacobson v. Sassower, 66 N.Y.2d 991, 992, 499 N.Y.S.2d 381, 382, 489 N.E.2d 1283 (1985); Bizar & Martin v. U.S. Ice Cream Corp., 228 A.D.2d 588, 644 N.Y.S.2d 753, 754 (2d Dep’t 1996). The requirements for an application for leave to compromise a claim for wrongful death and personal injuries in Surrogate’s Court indicate that the attorney’s fee is within that court’s jurisdiction and subject to significant scrutiny. See Uniform R. for Surr. Ct. § 207.38 (Compromises), 22 N.Y.C.R.R. § 207.38. The Surrogate determined that a one-third fee on the portion of the recovery not allocated to Scott Schweizer was reasonable, and in doing so it took into consideration the fee itself, the amount of work done by Schweizer’s attorneys, and the offer made by Reliance to Schweizer prior to his retention of John Mulvehill. Although the reasonableness of the fee was thus an issue decided by the Surrogate, we cannot conclude as a matter of law that that determination should be binding on this court In reaching this conclusion we note that the nature of the party’s representation in the prior proceeding is a factor to be considered in analyzing the preclusive effect of a prior determination. See Ryan, 62 N.Y.2d at 501, 478 N.Y.S.2d at 827, 467 N.E.2d 487; Mantin v. Zaslavsky, 172 Misc.2d 846, 849, 660 N.Y.S.2d 638, 641 (1997). In this case, the decision invoked for purposes of applying collateral estoppel was made while plaintiff was represented by defendants, the very parties he now accuses of a breach of trust, misrepresentation and fraudulent omissions. Moreover, although plaintiff was given an opportunity by the Surrogate to obtain other counsel, which he declined to do, that does not indicate that the representation that plaintiff did receive was sufficient to establish that he had a full and fair opportunity to litigate the present issues before the Surrogate. Apart from the natural disinclination of a represented party to pursue a challenge to his then-current attorneys, we note that plaintiff now contends that he lacked information at the time that, when later acquired, made clearer to him the misconduct of his former attorneys. Specifically, he asserts that he did not see the affidavits that John and Urban Mulvehill submitted to the Surrogate at the time of their submission. (See Schweizer Dep. at 234, 244 (indicating that the copy of Urban Mulve-hill’s affidavit was sent to him in October 1991); Def. Decl. 1, Ex S. (indicating last conference before Surrogate was Sept. 30, 1991)). Accordingly, plaintiff makes a col-orable case for the notion that he did not have the opportunity to bring to the Surrogate’s attention the alleged misrepresentations and omissions contained in the attorney affidavits that related to the fairness of the fee. In sum, although plaintiffs unhappiness with the size of the attorney’s fee was brought to Judge Owen’s attention, the fact that plaintiff was represented by the parties he is now seeking to hold liable for their conduct, in those proceedings, and in the underlying action as a whole, counsels against the imposition of collateral estop-pel. III. The Merits of Plaintiff's Claims A. Legal Malpractice Defendants contend that they are entitled to summary judgment on plaintiffs claim of legal malpractice. As noted, plaintiff alleges that defendants breached their duty to provide skillful, competent and zealous legal services by (1) failing to properly prepare and pursue the wrongful death and negligence claims for $21,500,-000; (2) failing to inform the plaintiff of alternatives to a one-third contingent retainer; and (3) obtaining a consent to settle from Mr. Schweizer without informing him of the fee-allocation arrangement between them, which constituted a “conflict of interest.” (Compl. at ¶¶ 73-78). We will address in this section plaintiffs claim that the settlement of the underlying action for the policy limit constituted legal malpractice, and the claim that defendants failed to inform their client of their fee-splitting arrangement. However, the other alleged basis of malpractice — John Mul-vehill’s failure to offer alternatives to the contingency fee — is more appropriately viewed as an alleged breach of the defendant’s fiduciary duty, since the omission complained of falls more naturally within fiduciary law than within malpractice. See, e.g., Newman v. Silver, 553 F.Supp. 485, 495 (S.D.N.Y.1982), aff'd in relevant part, 713 F.2d 14 (2d Cir.1983) (finding that “staggering fee” constituted breach of fiduciary duty, but not malpractice, because plaintiffs outcome would not have been different in underlying action). (See also infra pp. 400-01 n. 29). Accordingly, we will discuss that allegation in connection with plaintiffs fiduciary-breach claim. To prevail on a claim of legal malpractice — a specific form of negligence — a plaintiff must establish the failure of an attorney to exercise the degree of skill commonly exercised by an ordinary member of the legal community, proximately resulting in damages to the client. See Plentino Realty v. Gitomer, 216 A.D.2d 87, 88, 628 N.Y.S.2d 75, 75 (1st Dep’t), appeal denied, 87 N.Y.2d 805, 640 N.Y.S.2d 877, 663 N.E.2d 919 (1995); Saveca v. Reilly, 111 A.D.2d 493, 494, 488 N.Y.S.2d 876, 877 (3d Dep’t 1985). The four elements of a legal malpractice claim are: (1) the duty of the professional to use such skill, prudence, and diligence as other members of his profession commonly exercise; (2) a breach of that duty; (3) a proximate causal connection between the negligent conduct and the resulting injury; and (4) actual damage resulting from the professional’s negligence. See Leeds v. Sealove, 1988 WL 83401, at *1 (S.D.N.Y. July 28, 1988); Freschi v. Grand Coal Venture, 564 F.Supp. 414, 415 (S.D.N.Y. 1983); Tinter v. Rapaport, 253 A.D.2d 588, 590, 677 N.Y.S.2d 325, 326 (1st Dep’t 1998); Mendoza v. Schlossman, 87 A.D.2d 606, 607, 448 N.Y.S.2d 45, 46 (2d Dep’t 1982). 1. Failure to Pursue the Underlying Litigation Plaintiff contends that defendants were guilty of professional malpractice by virtue of their adoption of a scheme to settle plaintiffs case on inadequate terms. We conclude that plaintiffs proffered evidence is insufficient to create a triable dispute with respect to whether defendants breached their duty to him and whether he suffered any proximate injury from such a breach. a. Breach of Duty Plaintiff contends that John Mulvehill knew from the outset that he would never take the underlying action to trial and that he would instead settle the case for no more that the policy limit. (See Compl. at ¶¶ 4, 48-50). Plaintiff also contends that the agreement between the Mulvehills to settle the case for approximately $1 million was a breach of their duty as attorneys for plaintiff. Plaintiff has failed to present sufficient evidence that the failure to seek more than the one-million dollar coverage figure was an unreasonable course of action. An attorney’s decision to pursue one of several reasonable courses of action does not constitute malpractice. Rosner v. Paley, 65 N.Y.2d 736, 492 N.Y.S.2d 13, 14, 481 N.E.2d 553 (1985); see also DuPont v. Brady, 646 F.Supp. 1067, 1076 (S.D.N.Y.1986), rev’d on other grounds, 828 F.2d 75 (2d Cir.1987); Hanlin v. Mitchelson, 623 F.Supp. 452, 456 (S.D.N.Y.1985), aff'd in relevant part, 794 F.2d 834 (2d Cir.1986); Pacesetter Communications Corp. v. Solin & Breindel, P.C., 150 A.D.2d 232, 541 N.Y.S.2d 404, 406 (1st Dept.), appeal dis missed, 74 N.Y.2d 892, 547 N.Y.S.2d 849, 547 N.E.2d 104 (1989). Although settlement of the underlying claim does not preclude a subsequent action for legal malpractice in situations where settlement was effectively compelled by mistakes of counsel, see, e.g., Broad v. Conway, 675 F.Supp. 768, (N.D.N.Y.1987); Ran v. Borenkoff, 262 A.D.2d 388, 691 N.Y.S.2d 140 (2d Dep’t 1999); Lattimore v. Bergman, 224 A.D.2d 497, 637 N.Y.S.2d 777 (2d Dep’t 1996); Wolstencroft v. Sassower, 124 A.D.2d 582, 582, 507 N.Y.S.2d 728, 729 (2d Dep’t 1986), plaintiff here has not alleged or attempted to prove that settlement was made necessary by any such attorney error. Plaintiff also does not allege that he was coerced into the settlement by his attorneys. See, e.g., Broad v. Conway, 675 F.Supp. 768, 771 (N.D.N.Y.1987) (plaintiff alleging malpractice based on attorney’s coercion into accepting settlement). Therefore, in order to prevail, plaintiff would have to establish that settlement of the case was an “[un-Jreasonable course of action.” Rosner, 65 N.Y.2d at 738, 492 N.Y.S.2d at 14, 481 N.E.2d 553; Williams v. Brentwood Farmers Market, Inc., 256 A.D.2d 613, 615, 683 N.Y.S.2d 134, 136 (2d Dep’t 1998). Given the risks of success at trial, the range of estimates of economic loss calculated by the experts for both Schweizer and Skyway, and the potential difficulty of recovering monies beyond Skyway’s insurance coverage, plaintiff has failed to make a case for the proposition that the decision to adopt the proposed settlement was unreasonable. There is no question that the significant majority of civil cases, and in particular cases involving personal-injury claims, settle without trial. See, e.g., J.M. Wagner, Settlement Skills: an Essential Item in a Litigator’s Bag of Tricks, N.Y. Law Journal, July 11, 1991, at S3 (more than 90 percent of cases settle); Francis A. McMorris, Vast Majority of Year’s Personal Injury Claims Result in Settlement, N.Y. Law Journal, May 31, 1994, at 1 (discussing claims against the City of New York). Thus the fact that defendants here proposed to plaintiff that he agree to settle the underlying lawsuit is not itself evidence of a bad-faith “secret” plan or a sign of lawyer incompetence. Moreover, the undisputed circumstances that faced plaintiff and his attorneys at the time establish only that, as in the vast majority of cases, they were more comfortable with the certitude of settlement than the risk of trial. Plaintiff sued Skyway in the underlying action, seeking to recover 1) for the conscious pain and suffering of the decedent, Karen Schweizer ($10,000,000); 2) for the conscious pain and suffering of Scott Schweizer ($3,000,000); 3) for the loss of services of Mrs. Schweizer to those persons able to recover in wrongful death, that is, Richard and Scott Schweizer ($10,-000,000); and 4) for Richard Schweizer’s loss of services and consortium due to Scott’s personal injuries ($500,000). {See Def. Decl. 1, Ex. J (Compl. in Schweizer v. Skyway, et al.), at ¶¶ 1, 16, 17, 22, 24, 30, 31, 33, 34). There was no assurance that a jury would have awarded these amounts, or anything close to them. Quite to the contrary, the expert retained by John Mul-vehill to evaluate the economic loss attributable to Mrs. Schweizer’s death prepared a report that estimated the loss, discounted to present value, as $1,045,462. {See Def. Decl. 1, Ex. L, at 24). Moreover, the same loss, as calculated by Skyway’s economist was dramatically lower — approximately one-third of the estimate of plaintiffs expert — because the defendant’s economist did not rely on certain favorable inferences drawn by Dr. Kershner. {Compare id. at 6, 9 (that decedent would have returned to work shortly); 13 (employment through age 65)); 16 (a real discount rate of 1.2%) with Ex. M (Expert Report of Edmund Mantell) at fourth page (employment through 2003.9, i.e., age 50, and calculation and deduction of amount of Mrs. Schweizer’s self-maintenance); ninth page (discount rate of 7.5%). Dr. Kersh-ner would of course have been subjected to cross-examination on his various assumptions. Moreover, under New York law recovery for wrongful death does not include the sorrow or mental anguish of the survivors, and therefore a jury would have been instructed on the limits of an award in this regard. See, e.g., 1A New York Pattern Jury Instructions: Civil § 2:320 (3d ed.1999).- Similarly, some evidence tended to minimize the extent of Scott Schweizer’s psychological injuries. (See, e.g., Def. Decl. 2, Ex. E (Psychiatric Evaluation of Scott Schweizer by Lawrence Sheff, M.D., dated Oct. 6, 1990) at 2-5 (indicating child was doing well in school, test for depression scored within normal range, absence of intrusive thoughts, no recommendation for .psychiatric intervention)). Although a jury would likely have been sympathetic to the injuries the child had suffered, a pre-trial evaluation of the case had to take into account the relatively unremarkable report by the psychiatrist. We also note that the decision to settle spared Scott the trauma of testifying about the accident in which his mother had been killed, and thus may well have been a factor in his father’s decision to accept the settlement offer. In addition, photographs of the accident scene show that the wheels of the Schweizer vehicle were not turned, indicating that Mrs. Schweizer had taken no action to avoid the accident. A jury could have inferred from this fact that Mrs. Schweizer was unaware of any danger, thus suggesting that recovery for pre-impact terror was uncertain. (See USM Dep. at 921). The same fact could also have been the basis for Skyway’s argument to the jury that Mrs. Schweizer had been inattentive and that some diminution of damages, based on comparative negligence, was warranted. (See id. at 1066, 1321, 394-95). Lastly, the likely difficulty in recovering a judgment much beyond Skyway’s insurance coverage is a significant consideration in assessing the reasonableness of the decision to settle the underlying action, and plaintiff has failed to make a case that the weight given to this factor was unreasonable. Schweizer has proffered no evidence that Skyway had any insurance coverage other than the Reliance policy. Moreover, Skyway had limited, illiquid assets, and it was extremely unclear whether, as a practical matter, Schweizer could look to them to satisfy a judgment above the policy limit. (See infra at p. 396). In sum, given the assessment of the economists, the evidence regarding the accident, the cost of going forward with trial, and the potential difficulty of recovery beyond Skyway’s coverage, plaintiff cannot show that his lawyers’ advice to settle the case constituted a breach of their duties. b. Causation & Damages Plaintiff has also failed to establish causation and damages. These elements of malpractice are closely related to each other because if causation is lacking, it can frequently be said that there are no damages. See, e.g., Cramer, 203 A.D.2d at 739, 610 N.Y.S.2d at 662 (no malpractice where plaintiff failed to establish damages resulting from attorney’s error). The rule for proof of damages in legal malpractice is stringent. The lawyer’s conduct must have caused damages that are actual and ascertainable. “Mere speculation of a loss resulting from an attorney’s alleged omissions is insufficient to sustain a prima facie case in malpractice.” Luniewski v. Zeitlin, 188 A.D.2d 642, 643, 591 N.Y.S.2d 524, 526 (2d Dep’t 1992). The loss attributable to malpractice must be real and not hypothetical, and the damages must be readily measurable in economic terms. See, e.g., Zarin v. Reid & Priest et al., 184 A.D.2d 385, 385, 585 N.Y.S.2d 379, 381 (1st Dep’t 1992); Brown v. Samalin & Bock, P.C., 168 A.D.2d 531, 532, 563 N.Y.S.2d 426 (2d Dep’t 1990). The client-plaintiff will not prevail on a malpractice claim where the damages are “too speculative and incapable of being proven with any reasonable certainty.” Zarin, 184 A.D.2d at 388, 585 N.Y.S.2d at 382. See, e.g., Tuckman v. Wachtel, 200 A.D.2d 507, 508, 606 N.Y.S.2d 679 (1st Dep't 1994); Gazzola Bldg. Corp. v. Shapiro, 181 A.D.2d 718, 580 N.Y.S.2d 477, 477-78 (2d Dep’t 1992). Plaintiffs allegation that he would have recovered more if the underlying action had gone to trial or if his lawyers had not confined themselves to settlement within the limits of the relevant insurance coverage does not demonstrate the “actual and ascertainable” damages necessary for a malpractice claim. The speculative nature of what a plaintiff might have recovered at trial is precisely the risk that pre-trial settlement avoids. Moreover, even if plaintiff were able to prove that there was a breach of duty and that he would have received a judgment in excess of the settlement figure, he could not establish injury because he is limited to what was reasonably collectible from the underlying defendants if the award had exceeded their insurance coverage. See, e.g., Chiaffi v. Wexler, Bergerman & Crucet, 116 A.D.2d 614, 614, 497 N.Y.S.2d 703, 703 (2d Dep’t 1986). Plaintiff alleges that the insurance coverage was not the outside limit to recovery, that is, that Sky-way’s successor-in-interest had assets from which a judgment over its policy limit could have been satisfied (see PI. Mem. at 6), but he is reduced to pure speculation on this point. The only proffer in support of plaintiffs contention that a judgment in excess of $1 million could have been enforced is the fact that Skyway’s successor-in-interest was still operational as of the time of plaintiffs response to defendants’ summary judgment motion in April 1999,. (See PL’s Mem. at 14). Highway Freight Lines, Inc., acquired Skyway’s equipment, free of any loans, for $50,000. (Jan. 6, 1998 Lenihan Dep. at 73; but see PL Decl. 1, Ex. 28 (indicating that the transfer of the equipment entailed Highway’s assumption of existing loans on the equipment)). Skyway’s president testified that the change was motivated by Skyway’s increased insurance bill. (Jan. 6, 1998 Leni-han Dep. at 44-45). The inference to be drawn from the testimony of Mr, Lenihan and Frank M. Terranova — possibly an attorney who did work for Skyway — and the corporate documents (Pl. Decl. 1, Exs. 28 & 29) is that the transfer — or more precisely, incorporation under a new name— was motivated by a desire to avoid Sky-way’s liabilities. Whether a judgment against Skyway would have been enforceable against Highway’s assets, however, is far from certain. In any event, plaintiff has failed to make a case that these assets were recoverable at the time of the underlying settlement. That Skyway continues to exist in some related form is not probative of the fact that its assets would have been subject to the enforcement of a judgment. If malpractice claims could be based on such speculation as to what might have been recovered from an underlying defendant, settlements would frequently subject the participating attorneys to malpractice suits by clients who later become dissatisfied with the risk assessment that they and their counsel engaged in when deciding to settle. 2. Failure to Disclose Fee-Sharing Arrangement As a second prong to plaintiffs malpractice claim, he asserts a breach of duty by defendant Urban Mulvehill by virtue of his alleged failure to inform his client of all information material to his decision to either accept or reject the settlement offer. The specific omission is Mulvehill’s failure to disclose that he had a pecuniary interest in the outcome of the wrongful-death litigation when he recommended to Schweizer that he accept the proposed settlement. Negligent or willful withholding of information material to the client’s decision to pursue a course of action is a breach of the duty of due care. See, e.g., Ayala v. Fischman, 1998 WL 726005, *3 (S.D.N.Y. Oct. 15, 1998); DuPont, 646 F.Supp. at 1076 (finding attorney, hired to advise client regarding tax shelter, was negligent for failing to advise client of tax risks), rev’d on other grounds, 828 F.2d 75 (2d Cir.1987); see also Hart, 620 N.Y.S.2d at 849 (attorney’s failure to advise his client as to the enforceability of a pledge agreement constituted negligence). If the attorney breaches this duty, then he is liable for any losses suffered by the client as a result of making a decision without the benefit of this information. DuPont, 646 F.Supp. at 1076 (citing Spector v. Mermelstein, 361 F.Supp. 30, 39-40 (S.D.N.Y.1972)). As noted, to establish a malpractice claim the plaintiff must demonstrate not only the breach of a professional duty, but proximate causation of pecuniary injury as a result. Even if we assume that plaintiff has demonstrated a triable dispute as to the alleged omission by Urban Mulvehill and his reliance on that omission, his allegations fail as a malpractice claim, because, as previously discussed, plaintiff cannot establish injury stemming from the decision to settle the underlying action. Necessarily, then, he has not created a triable dispute as to whether Mulvehill’s failure to disclose the fact of the referral-fee proximately caused his injury. Accordingly, this aspect of his malpractice claim must also be rejected as a matter of law. 13. Breach of Contract Plaintiff also alleges that the conduct of the attorneys in the underlying action constitutes a breach of contract. He asserts that defendants entered into an agreement with him to provide skillful, competent and zealous legal representation, and. that by failing properly to prepare and pursue the wrongful-death and personal-injury claims defendants breached that contract. (CompU 81). Plaintiff also contends that the failure to identify alternatives to the agreed-upon contingency fee and to disclose conflicts of interest constituted a contract breach. (Id. at ¶¶ 82, 83). Defendants respond that to the extent that plaintiffs claim repeats the factual allegations set forth in the claim of legal malpractice, they should be dismissed as duplicative. (See Def.’s Mem. at 33 & n. 22). Defendants further contend that a breach-of-contract action against an attorney cannot be sustained absent an explicit promise by the attorney to obtain a specific result, and that the retainer agreement with Schweizer contained no such explicit promise. (See id. at 30). Under New York law “a breach of contract action may be maintained against a professional based on ‘an implied promise to exercise due care in performing the services required by the contract.’ ” Santulli v. Englert, Reilly & McHugh, 78 N.Y.2d 700, 705, 579 N.Y.S.2d 324, 326, 586 N.E.2d 1014 (1992) (citing Video Corp. of America v. Frederick Flatto Assocs., 58 N.Y.2d 1026, 462 N.Y.S.2d 439, 448 N.E.2d 1350 (1983); Bloom v. Kernan, 146 A.D.2d 916, 917, 536 N.Y.S.2d 897, 898-99 (3d Dep’t 1989)). The holding in Santulli allowed a plaintiff to pursue a cause of action based on allegations similar to those underlying a malpractice claim although the three-year limitations period for malpractice had run. However, if the contract claim is nothing but a redundant pleading of a timely malpractice claim, it should be dismissed as duplicative. See Estate of