I concur in the views expressed by Justice Silverman in his dissent and would reverse the order and dismiss the complaint pursuant to CPLR 3211 (subd [a], pars 1, 7). The action was brought to recover for malpractice by defendant Florsheim upon allegations that he failed to commence and/or prosecute an action on plaintiff’s behalf against the City of New York to recover for injuries sustained when plaintiff fell on Seventh Avenue in New York City on or about December 23, 1969. It is also claimed that defendant deceived plaintiff into believing that he had obtained a settlement in the negligence action in the sum of $4,500, and requested that plaintiff execute a release for that purpose. However, undisputed on this record is that, in June, 1970, defendant did institute an action on plaintiff’s behalf in the Civil Court against the city by service of a summons and indorsed complaint. Florsheim had been disbarred on October 2,1980, effective November 3,1980. Prior thereto, on May 17, 1979, he was suspended from practice pending the results before the departmental disciplinary committee. As a result, at least since May of 1979, he has been effectively precluded from practicing law and, insofar as concerns plaintiffs, from proceeding with any prosecution of the underlying action. In moving to dismiss, Florsheim alleges that the underlying action is still pending but he is precluded from proceeding to place the case on the Trial Calendar by reason of his having been the subject of disciplinary action. His attorney in this action requested that plaintiffs secure new counsel. Under the circumstances, since it appears that an action was commenced by defendant and is presently pending, no claim sounding in malpractice would accrue nor could an action be brought until disposition of the underlying action (Siegel v Kranis, 29 AD2d 477, 480). There, the Appellate Division, Second Department, observed (p 480): “The negligence which the plaintiffs assert could not come to light until the conclusion of the litigation, that is, when the permanent stay of arbitration-resulted because of the late service of the notice of claim. Surely it would be premature and even presumptuous of the plaintiffs to institute an action against the defendant prior to the definitive determination through the process of the court of the defect in complying with the statutory mandates.” To recover herein plaintiffs must establish these necessary elements: (1) The underlying action is meritorious and constitutes the basis for an award therein; and (2) The amount of such award, which would be an element of damage suffered in this action. It is obvious that these two factors, critical in the determination of this action, may not be resolved in plaintiffs’ favor at this point, thereby rendering the malpractice action moot *488until such time. To the extent that plaintiffs seek to recover for the manner by which defendant conducted the prosecution of the underlying action or for any fraud or deceit in connection with any purported settlement which never came to fruition, it is clear that plaintiffs have, at this time, suffered no loss attributable to the claimed malpractice until termination of that action. While the record reflects that the release was executed by plaintiffs during the period that Florsheim had been suspended from practice, whether that fact has any bearing upon the claim of malpractice cannot be determined on this record and, in any event, cannot be ascertained until the underlying action has been concluded. In view of the uncontested viability of the Civil Court action at this time, there is no resulting prejudice and no loss to plaintiffs. Therefore, the action is premature since there is presently no cognizable claim for relief. Accordingly, the complaint should be dismissed, without prejudice to plaintiffs’ right to seek such relief as they deem appropriate following resolution of the underlying action.