FKB's Mike Furman and Lynn Dukette win summary judgment in favor of a NYC law firm in a legal malpractice action arising from an underlying child custody and support dispute.4/26/11

FKB's client, a midtown law firm with an established healthcare and matrimonial practice, represented the plaintiff over the course of three years in an underlying contentious child custody and support dispute. Just prior to the custody trial (11 days), successor counsel was retained, and the attorney-client relationship between FKB's client and the plaintiff terminated. At the conclusion of the trial, the Family Court awarded custody to the child's father and not to plaintiff (the mother). Plaintiff appealed, but the Appellate Division affirmed. The issue of child support was determined in a separate trial.

In the Complaint, the plaintiff set forth a laundry list of criticisms of the tactical decisions made by FKB's client in its representation of the plaintiff. Namely, the plaintiff alleged that FKB's client breached the standard of care by failing to engage in adequate financial discovery, failing to adequately communicate, etc., resulting in the plaintiff losing custody of her child and having to pay child support.

Following the conclusion of discovery, FKB moved for summary judgment, asserting that the plaintiff's legal malpractice claim must fail for five reasons: (1) the underlying Family Court's decision regarding the custody of the plaintiff's child was discretionary and based upon a number of factors spelled out in the Domestic Relations Law and the Family Court Act; (2) the plaintiff did not suffer any economic damages, which is necessary to sustain a claim for legal malpractice; (3) even if the plaintiff's allegations of malpractice were deemed true, successor counsel had ample opportunity to correct any alleged mistakes or errors; (4) in any event FKB's client's tactical decisions were not actionable, as lawyers are entitled to the exercise of reasonable judgment; and (5) at any time, the plaintiff could always seek modification of the underlying Family Court orders as to custody and support.

In her decision, Hon. Joan Kenney of the New York County Supreme Court found that the plaintiff failed to set forth evidence that she would have been awarded custody of her child by the Family Court "but for" any alleged negligence by FKB's client. The Court discussed the findings of the independent law guardian and forensic psychiatrist, noting that the Family Court had carefully considered both, and all other evidence presented at trial, when making its ultimate determination to award custody to the child's father. In conclusion, Justice Kenney held the Family Court got it right when it found that it was in the best interest of the child to award custody to the child's father. The Family Court's decision was based upon the plaintiff's own actions, and not a result of the alleged negligence of any of the multiple attorneys (including FKB's client) who represented the plaintiff in the custody dispute. Additionally, Justice Kenney found that the plaintiff's assertion that she was damaged based upon her "payment of support" was specious at best, since child support obligations are based upon each parent's proportionate share of a child's living expenses. A non-custodial parent does not "pay" child support, but rather, he or she contributes his or her share of the expense of raising a child. FKB's motion for summary judgment was granted in its entirety and the Plaintiff's Complaint was dismissed, with prejudice. FKB's Mike Furman and Lynn Dukette represented the defendant law firm.

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