FKB's Mike Furman and Andrew Kowlowitz obtain dismissal of legal malpractice action arising from an attorney's representation of a client in an underlying divorce proceeding. 12/9/09

FKB's client, a Manhattan-based matrimonial attorney, was retained to represent plaintiff in connection with a divorce proceeding from her former husband. The matrimonial action settled prior to trial. Upon reaching the settlement, a stipulation was placed on the record in open court and plaintiff's allocution took place. Plaintiff testified that she understood the terms of the settlement, agreed to the terms free of coercion and was satisfied with her attorney's services.

Dissatisfied with the settlement, plaintiff subsequently filed a Complaint against her attorney alleging legal malpractice. Plaintiff alleged that her attorney was negligent, committed legal malpractice, and breached a fiduciary duty in connection with his handling of the underlying matrimonial action for: failing to conduct adequate discovery of plaintiff's former husband's assets; failing to perform an adequate analysis as to child support payments; and failing to perform an adequate analysis as to maintenance and spousal support. Plaintiff alleged that her attorney's misconduct compelled her to settle the matrimonial action on unfavorable terms.

FKB filed a pre-answer motion to dismiss the Complaint pursuant to CPLR § 3211. Among other things, FKB argued that plaintiff cannot prove that her attorney's conduct was "but for" proximate causation of any loss with respect to the underlying matrimonial settlement as her allocution in open court undermines her claims. FKB argued that the allocution confirms that plaintiff (an educated individual and practicing dentist) understood and consented to the terms of the matrimonial settlement, that the matrimonial settlement was a product of plaintiff's free will (and not as a result of some perceived deficiency in her attorney's representation), and was satisfied with her attorney's conduct. FKB argued that plaintiff cannot allege that her attorney's conduct somehow compelled her to accept a settlement she now, in hindsight, alleges is insufficient.

On November 10, 2009, Hon. Carol Edmead, J.S.C. (of New York County) granted the defendant's motion to dismiss in its entirety and denied plaintiff's Cross-Motion seeking leave to amend her complaint. Justice Edmead found that plaintiff's allocution undermines her claim for legal malpractice. "[T]he documentary evidence flatly contradicts plaintiff's allegations she was 'effectively compelled' to settle the divorce by the mistakes of defendant. Plaintiff's allegations that she would have achieved a better divorce settlement but for defendant's alleged malpractice … are insufficient to overcome her previous allocution that she willingly settled the divorce proceeding and was satisfied with defendant's services. Such allegations also are insufficient to indicate that defendant's alleged malpractice compelled her to settle. Accordingly, plaintiff's allocution defeats her claim for legal malpractice."

Justice Edmead's decision was published in its entirety in the New York Law Journal on November 16, 2009.

Please contact FKB's Mike Furman or Andrew Kowlowitz should you have any questions about the decision or this practice area in general.

Mike Furman's bio / email | Andrew Kowlowitz's bio / email

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