FKB's Andrew S. Kowlowitz wins appeal in the Appellate Division, First Department unanimously affirming dismissal of a legal malpractice action against a matrimonial attorney. 3/31/2011

FKB's client, a Manhattan-based matrimonial attorney, was retained to represent plaintiff in connection with a divorce proceeding from her former husband. Just before commencement of the matrimonial trial, and after a lengthy negotiation, the action settled. A settlement 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. 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 is estopped from proving that her former 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. (New York County Supreme Court) granted the defendant attorney's motion to dismiss in its entirety and denied plaintiff's Cross-Motion seeking leave to amend her complaint. Justice Edmead found that documentary evidence, namely plaintiff's allocution, undermines her claim for legal malpractice and precluded her from proving that her decision to settle the underlying matrimonial action was coerced, or based upon some deficiency in her attorney's representation. Plaintiff then pursued an appeal to the Appellate Division, First Department.

On appeal before the First Department, FKB argued that the lower court properly dismissed the Complaint against the defendant attorney on the basis that the allocution precluded her from proving that her decision to settle was the product of coercion. FKB relied upon two seminal decisions, bearing a similar set of facts; Katebi v. Fink, 51 A.D.3d 424, 857 N.Y.S.2d 109 (1st Dept. 2008), and Weissman v. Kessler, 78 A.D.3d 465, 912 N.Y.S.2d 25 (1st Dept. 2010). (FKB attorneys successfully represented the defendants in Katebi and Weissman, in the lower court and on appeal.)

The First Department issued an Opinion on March 31, 2011, affirming the lower court's dismissal of the legal malpractice action. In summary, the First Department, relying on Katebi and Weissman, held that plaintiff's allocution of the underlying settlement stipulation contradicted the allegations offered in support of her claim for legal malpractice.

FKB's Andrew S. Kowlowitz drafted and argued the appeal. The Opinion is reported at 2011 WL 1162994.

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