Hon. Richard F. Braun, J.S.C. (New York County) granted FKB's motion to dismiss a legal malpractice action against our client, a matrimonial attorney, in connection with his representation of the plaintiff in the underlying six year-long matrimonial action.11/24/08

In the legal malpractice action, the plaintiff alleged that our client "failed to ascertain, identify and value fully the financial assets and holdings [of the plaintiff's ex-husband], which should have been calculated and included as part of the marital estate." The plaintiff further alleged that our client failed to establish in the underlying matrimonial action that the plaintiff's ex-husband was physically and emotionally abusive, and "guilty of egregious and unconscionable behavior and conduct toward plaintiff," which would have legally entitled the plaintiff to "an enhanced distribution from the marital estate."

In our motion to dismiss, we challenged the plaintiff's claims, and argued that she could not offer any proof of undisclosed financial assets and/or holdings, which were not included (and valued) as a part of the marital property. In support, we attached the numerous motions and appeals that were filed during the course of the underlying matrimonial action to disprove the plaintiff's claims, and establish that our client had, in fact, vigorously pursued a claim for egregious and unconscionable behavior on the plaintiff's behalf. We also argued that since the plaintiff's allegations of misconduct against her ex-spouse were contemplated during the on-the-record settlement – the plaintiff is barred from alleging that our client failed to pursue this claim in the legal malpractice action.

In dismissing the legal malpractice action, Justice Braun agreed with our arguments – in particular our collateral estoppel argument – holding that "[p]laintiff settled the underlying matrimonial action on the terms stated on the record in open court. She allocated that she was satisfied with her counsel and that no one forced her to settle." Accordingly, the Court held that "documentary evidence conclusively establishes" that the plaintiff's claims should be dismissed as against our client.

FKB's Melissa Manning prepared the papers and successfully argued the winning motion.

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