FKB wins appeal in the Appellate Division, First Department, reversing the lower court's denial of a motion to dismiss, and obtaining the dismissal of all legal malpractice claims against a prominent NYC matrimonial law firm arising out of the law firm's withdrawal from representation of the plaintiff in the course of the underlying divorce trial. 8/30/09

August 30, 2009: FKB's client, a well-regarded NYC matrimonial law firm, represented the wife in a hotly contested matrimonial action. The underlying trial, with Justice Gische of the Supreme Court, New York County presiding, commenced on May 3, 2004 with the direct examination of the husband, who testified over a three day period. The case was then adjourned to July 7, 2004, prior to the completion of the husband's cross-examination. In the interim, a dispute arose regarding fees, and the law firm filed an Order to Show Cause on June 7, 2004, seeking leave to withdraw as counsel. Justice Gische determined that the attorney-client relationship between the law firm and the defendant had reached an "irretrievable breakdown," and ordered that the law firm be discharged from the case.

The law firm then filed a fee suit against the wife for unpaid legal bills, and the former client asserted counterclaims for professional malpractice, claiming that the withdrawal from the action, in the midst of trial, caused the former client (wife) irreparable harm, in that her replacement counsel was unable to adequately prepare for trial, and that the discovery/investigation performed by the law firm was inadequate.

In reversing the lower court's denial of the motion to dismiss pursuant to CPLR § 3211 for failure to state a cause of action, the Appellate Division, First Department found that the former client "failed to demonstrate that she would have succeeded on the merits of the underlying action for divorce but for [the law firm's] negligence." In addition, the Appellate Division agreed with our argument that the former client was not prejudiced by the law firm's mid-trial motion to withdraw, because the Appellate Division, in the former client's earlier appeal from the judgment of divorce (55 A.D.3d 477, 867 N.Y.S.2d 55 [2008]) found that "the trial court appropriately exercised its discretion in granting a five-day adjournment rather than the longer one requested by defendant's counsel since successor counsel had nearly a month to prepare for trial." In addition, the Appellate Division noted that while it remanded the underlying matrimonial action matter for recalculation of the parties' respective child support obligations and a finding as to the cost of health insurance for the wife at the pre-divorce level of coverage, it found the wife's arguments regarding the classification, valuation and distribution of property and the award of maintenance to be "unavailing" (id. at 478, 867 N.Y.S.2d 55).

FKB's Melissa Manning and Mike Furman represented the law firm in this appeal, which is reported at 65 A.D.3d 499, 884 N.Y.S.2d 59 (1st Dept. 2009).

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