Matrimonial legal malpractice has two distinct sides. In representing the monied spouse, it generally consists of a claim that the attorney overbilled, and churned the file. In representing the non-monied spouse, it generally consists of a claim that the settlement was unfair, or that the attorney failed to discover a large cache of assets.
In Mayerson Stutman Abramowitz, LLP v Rosenbaum 2014 NY Slip Op 30016(U) January 6, 2014 Supreme Court, New York County Docket Number: 152172/2013 Judge: Eileen A. Rakower we see a more common or varietal species of fee dispute/counterclaim situation. Here, defendant-spouse has already tried and lost a legal malpractice case, and is now defending against an account stated claim.
"This action was commenced on March 8, 2013 by plaintiff Mayerson Stutman Abramowitz, LLP ("Plaintiff’) with the filing of a Summons and Verified Complaint on March 8, 2013. The Complaint alleges claims for account stated and breach of contract against defendant Carolyn Donovan Rosenbaum ("Defendant" or "Rosenbaum").
On March 27, 2013, Defendant interposed an answer with affirmative defenses and counterclaims. The affirmative defenses asserted are: statute of limitations has expired, the services rendered by Plaintiff were "unnecessary, unwarranted, and duplicative," and the services rendered were "inadequate and improperly performed." Defendant’s first counterclaim is for breach of contract
by Plaintiff in "charging Defendant unnecessary, wasteful and duplicative legal charges and expenses in the amount of $159,536 and seeks the refund of all sums paid to Plaintiff; the second is for unjust enrichment; and the third is for misrepresentation of sums allegedly due and owing and violation of the New York Code of Professional Responsibility.
Here, Plaintiff has made a prima facie showing of entitlement to judgment as a matter of law on its account stated claim by submitting evidence of Defendant’s receipt and retention of Plaintiffs invoices without objection within a reasonable time, and partial payments made thereon. Defendant, in opposition, has failed to raise a triable issue of fact by failing to submit evidence in admissible form that Defendant made any objection upon receipt of the Plaintiffs invoices or
within a reasonable time thereafter. The discovery defendant claims is outstanding, specifically, the deposition of Abramowitz, would not be the source of such evidence. Furthermore, as for Defendant Rosenbaum’ s Counterclaims, Defendant Rosenbaum previously commenced an action on March I 0, 20 I 0 entitled "Carolyn Donovan Rosenbaum v. Sheresky Aronson Mayefsky & Sloan, LLP, Heidi E. Harris, Esq., Allan Mayesky, Esq., Mayerson Stutman Abramowitz, LLP, and
Alton L. Abramowitz, Esq.," Index No. 7341-2010, which asserted claims for legal malpractice arising from the Mayerson law firm’s negotiation of her Separation Agreement, breach of contract based on allegations of overcharging of Plaintiff by the Mayerson law firm, and unjust enrichment. On August 17, 20 I 0, Justice Mary H. Smith dismissed the legal malpractice claim on the basis that the Mayerson law firm demonstrated that the parties’ legal relationship had ceased nineteen months before the purported Settlement Agreement had been reached. The Court further dismissed Rosenbaum’s breach of contract claim as duplicative of her legal malpractice and excessive fee claims and Rosenbaum’s unjust enrichment claim in light of the existence of a written retainer agreement. The Court permitted Rosenbaum to re-file her fee dispute claim with the Joint Committee on Fee Dispute and Conciliation. On March 3, 2011, Defendant filed an appeal with the Appellate Division, Second Department, asserting that the lower court erred in dismissing the action against the Mayerson law firm. On November 14, 2012, the Second Department affirmed the decision of the trial court. On November 28,2012, the Mayerson law firm attempted to restore the Fee Arbitration but was unable to do so and commenced the instant action. "