Gersh v Nixon Peabody LLP 2017 NY Slip Op 30363(U)  February 27, 2017
Supreme Court, New York County  Docket Number: 155668/2016  Judge: Carol R. Edmead is an example of the hurdles over which a legal malpractice plaintiff must jump.  Its a complicated but familiar estate planning issue.  Decedent was previously married with children.  Separation agreement many years ago required part of Decedent’s estate to go to children.  He remarries and many years later tries to leave everything to second wife.  Predictably, there is friction.

“On the other hand, as to the claim that Defendants failed to advise Edward of the potential consequences and impact of the Separation Agreement, and to the extent Defendants’ alleged failure to properly prepare Edward’s 2003 Will rests on the impact of the Separation Agreement, an attorney cannot be held liable for legal malpractice for failing to disclose facts already known to the client. In Green v. Conciatori, an action for legal malpractice, plaintiff alleged that his former attorneys in a personal injury suit, failed to discover facts about the underlying incident that differed from what plaintiff had given defendants (Green v. Conciatori, 26 A.D.3d 410, 809 N.Y.S.2d 559 [2d Dept 2006]). The undiscovered facts were known to plaintiff, but never disclosed to defendants (Id. at 411 ). The court held that while plaintiffs claim is time-barred, defendants “should not be held liable for ignorance of facts which the client neglected to tell him or her” (Id.). ”

“In any event, and even assuming Defendants breached any obligation to investigate Edward’s prior agreements, Defendants established that Plaintiff cannot establish that any negligent representation on behalf of the Defendants was the proximate cause of her damages. · Plaintiffs assertion of what Edward would have done had he received difference advice is speculative and insufficient to support a legal malpractice claim (see Leff v. Fulbright & Jaworski, LLP, 2009 N.Y. Slip Op. 31445(U) [Sup. Ct. N.Y. Cnty. June 30, 2009], aff’d 78 A.D.3d 531, 533 [1st Dept 201 O]). In Leff, the complaint alleged that defendants who drafted her late husband Leff’s will committed legal malpractice by failing to advise Leff about a separation agreement that required him to leave half of his probated estate to his son (78 A.D.3d at 533). Leff s separation agreement provided that “[i]n the event the parties shall be divorced and the [plaintiff] shall have remarried, [Leff] shall provide by Will that no less than one-half (1/2) of his probate estate shall pass to the Child … . “(id.). Plaintiff claimed that Leff would have-taken various different actions to increase her inheritance had defendants discovered and advised Leff of the separation agreement. The trial Court rejected plaintiffs speculation that Leff “would most likely have provided for inter-vivos gifts, created trusts, or joint accounts outside the probate estate to attain that goal” as “pure conjecture” (id.) The Court held that a “jury would only be speculating about how Leff might have solved the problem of the Separation Agreement,” and. therefore, Plaintiff failed to establish that “but for defendants’ negligence, she would have come out of probate a richer woman” (id.)

The First Department affirmed, explaining that: [P]laintiff cannot recover damages that are grossly speculative [internal citations omitted]. Defendants demonstrated that plaintiff could not satisfy the causation element of her malpractice claim because she could not prove that her inheritance would have increased if defendants had advised her late husband about a separation agreement that required him to leave half of his probated estate to his son. While plaintiff suggests various things her late husband could have done to ensure her more money than she eventually received, she cannot prove precisely what he would have done had he received different advice. Therefore, she cannot establish that but for defendants’ failure to advise her late husband of the separatiqn agreement, she would have received more money. In this regard, we note that plaintiffs late husband had the right to reduce her inheritance at any point in time. Leff, 78 A.D.3d at 533.

As in Leff, Plaintiffs claims here are too speculative to support a claim for legal malpractice. Specifically, Plaintiffs arguments that Edward could have transferred assets, entered into an agreement, and limit inter vivos gifts to Laurie and Ellynn, are speculative and plaintiffs allegations are insufficient to support her claim of what Edward would have done had he received different advice. Therefore, dismissal of legal malpractice claim (First Cause of Action) and negligence claim (Third Cause of Action), is warranted. ”