Would a medical malpractice case be dismissed because the patient said (when coming out of anesthesia) that the surgeon seemed great?  Would an accounting malpractice case be dismissed when the client said that the numbers looked good?  No.  But legal malpractice cases (all in the matrimonial area) are being dismissed when the client is told (by his attorney) to say that he was “satisfied” with the representation at the settlement allocution.  By the way, when else is a settlement “allocuted” on the record?  Never.

Goldweber Epstein, LLP v Goldberg  2015 NY Slip Op 31916(U) October 14, 2015 Supreme Court, New York County Docket Number: 650807/2015 Judge: Cynthia S. Kern is the latest example in the Harvey line.

“On or about March 16, 2015, plaintiff commenced this fee action against defendant seeking to recover the alleged $49,464.65 in legal fees. In response, defendant served an answer asserting a counterclaim against plaintiff sounding in legal malpractice. Specifically, defendant alleges plaintiff: (a) failed to conduct adequate discovery regarding the defendant’s wife’s financial interests; (b) failed to competently negotiate two settlement agreements; (c) failed to competently negotiate a settlement spread on the record; ( d) incorrectly insisted that the “status quo” formula maintained for over 3 years was to defendant’s benefit; (e)’failed to understand the matrimonial part of Westchester County and the imminent withdrawal of Judge Wood; (f) wasted thousands of dollars in retaining a separate financial expert to assist plaintiff inasmuch as plaintiff could not understand the most basic financial concept; (g) lacked the ability to understand or explain the terms of a promissory note with an “equity kicker”; (h) lacked the ability to comprehend a law firm partnership agreement; and (i) refused;,despite persistent inquires by defendant, to address the financial impact of supporting a dis’abled daughter. Plaintiff now moves to dismiss this counterclaim. ”

“In the present case, plaintiff’s motion for an Order pursuant to CPLR § 3211 (a)(l) dismissing defendant’s counterclaim for malpractice is granted as the documentary evidence presented by plaintiff definitively disposes of defendant’s counterclaim. According to the First Department, “[a] claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel.” Bernstein v. Oppenheim, 160 A.D.2d 428, 430 (pt Dept 1990). However, courts have consistently held that where a client performs an allocution and acknowledges that he or she is satisfied with an attorney’s performance, there is no viable malpractice claim. See Harvey v. Greenberg, 82 A.D.3d 683, 683 (I5t Dept 2011); Weissman v. Kessler, 78 A.D.3d 465, 465- 466 (pt Dept 2010); Kate bi v. Fink, 51 A.D.3d 424, 425 (1st Dept 2008). Here, defendant allocuted in open Court that he was satisfied with the settlement of the Matrimonial Action and plaintiffs representation. Indeed, when explicitly asked by Justice Christopher “[a]re you … 3 [* 3] satisfied with the respective attorneys,” defendant responded with “Yes.” Thus, this allocution clearly contradicts defendant’s allegation of malpractice and defendant’s. counterclaim must be dismissed. Accordingly, plaintiffs motion is granted and it is hereby ORDERED that defendant’s counterclaim for malprac.tice is dismissed. This constitutes the decision and order of the court. “