A Divorce Legal Malpractice Case in the 4th Department

Malachowski v Daly ; 2011 NY Slip Op 06720 ; Decided on September 30, 2011 ; Appellate Division, Fourth Department  is a divorce legal malpractice case from Utica, and it demonstrates two things.  Plaintiff must, early on, set the tone and state the claims in bills of particular and during early discovery, and once having determined the claims, they must be robust enough to pass muster with the Court and the AD.  Here, a late-made claim that wife's credit card debt was understated, and that the attorney failed to discover the correct amount is undercut by the fact that the credit card debt was understated by $ 74.00  The same is more or less true for pension benefits and other claims.

"We further conclude that the court properly granted that part of the motion seeking dismissal of the amended complaint insofar as it alleges that defendant failed to move to vacate the stipulation entered in the underlying divorce action, inasmuch as plaintiff did not retain defendant for that purpose (see DiGiacomo v Levine, 76 AD3d 946, 949-950). We note that plaintiff contends for the first time on appeal that defendant promised to move for vacatur. Because plaintiff did not set forth that contention in the amended complaint or in the bill of particulars, or otherwise raise the issue in Supreme Court, that contention is not properly before us (see Ciesinski v Town of Aurora, 202 AD2d 984, 985).

Plaintiff's remaining contention is that the court erred in granting that part of defendant's motion with respect to his claim that defendant was negligent in failing to discover prior to settlement of the underlying divorce action that plaintiff's ex-wife, upon retirement, would receive payments of $500 per month from her then employer, over and above her anticipated pension benefits. We reject that contention. As the court noted in its decision, and as plaintiff concedes on appeal, the exact nature of the payments to plaintiff's ex-wife is unclear from the record. It cannot be determined whether the payments constitute marital property, as plaintiff suggests, or whether, as defendant posits, they constitute social security bridge payments, which do not constitute a form of deferred compensation and thus are not marital property (see Olivo v Olivo, 82 NY2d 202, 208). Plaintiff's claim regarding the payments in question was not set forth in the amended complaint, nor was it referenced in the bill of particulars. Instead, it was raised for the first time by plaintiff in opposition to defendant's motion. "
 

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