A $7,171.00 Legal Malpracttice Case

We've seen $7 Million legal malpractice cases, and $ 700,000 cases, but it is rare to see a Supreme Court case for $ 7,171.00  Nevertheless, plaintiff brought Dash v Davis & Gilbert LLP
2013 NY Slip Op 51469(U)   Decided on September 6, 2013   Supreme Court, New York County
Ling-Cohan,  only to lose on a CPLR 3211 motion. 

"Defendants argue that plaintiff is seeking to re-litigate issues that were settled in the Surrogate's Court Action, and, thus, plaintiff's claims are barred by res judicata. Defendants further argue that, pursuant to CPLR 3211(a)(1), the undisputed documentary evidence disposes of plaintiff's claims. Defendants also contend that plaintiff's complaint must be dismissed as it fails to state a cause of action.
In opposition to defendants' motion, plaintiff argues that she was not previously provided with a full and fair opportunity to litigate her claims of fraud, negligence, and legal malpractice [*3]in the Surrogate's Court Action. Plaintiff also argues that the Executors failed to support the claim of pre-arrangement contracts with conclusive facts. Plaintiff alleges that on April 6, 2012, she received an email from defendants which contained a Final Accounting and a Stipulation of Settlement which differed from what was agreed upon. According to plaintiff, this proves defendants' deceit and fraudulent behavior. Specifically, in her opposition, plaintiff seeks damages of $7,171 for the difference between the agreed upon sale price of the Amsterdam Memorial Chapel and the actual sale price. In support, plaintiff proffers a letter sent by defendant Law Firm, dated November 10, 2011, to plaintiff's attorney in the Surrogate's Court Action with a proposed settlement of, inter alia, a "distribution of the estate's interest in the [Amsterdam Memorial] chapel in kind, or a sale for $60,000, whichever [plaintiff] prefer[s]. ...[I]f there is a distribution in kind, [defendant Harris] intends to sell her interest to Mr. Bethea in a separate transaction." Dash Affidavit in Opposition, Exh. K, p. 1. Plaintiff also proffers a copy of the email and Final Accounting, dated April 6, 2012, which lists the sale of the interest in the Amsterdam Memorial Chapel at $52,829, rather than $60,000. See Dash Affidavit in Opposition, Exh. L, Schedule A.

It is well settled that New York has adopted the transactional analysis approach to res judicata. "Under the transactional analysis approach..., once a claim is brought to a final conclusion, all other claims arising out of the same transaction or series of transactions are barred, even if based upon different theories or if seeking a different remedy". Cornwall Warehousing, Inc. v Town of New Windsor, 238 AD2d 370, 371 (2d Dep't 1997) (internal quotations omitted).

Here, plaintiff concedes that she raised objections in the Surrogate's Court Action, obtained an attorney to represent her, negotiated and ultimately agreed to a settlement in the Surrogate's Court Action, and withdrew her objections with prejudice. While plaintiff proffers a proposed settlement allegedly offered by defendants to settle the Surrogate's Court Action, such proposal did not result in the final settlement agreement. Significantly, plaintiff does not allege that she agreed to settle on the terms proposed in defendants' letter of November 10, 2011, and, thus, such proposed settlement is not conclusive proof of agreed upon terms. Further, the Final Accounting proffered by plaintiff dated April 6, 2012 - nearly five months after the proposed settlement - was admittedly received and reviewed by plaintiff, prior to her entering into the Stipulation of Settlement in the Surrogate's Court Action on April 19, 2012. Plaintiff, knowing that the interest in the Amsterdam Memorial Chapel was sold for $52,829, nonetheless, chose to settle the Surrogate's Court Action and withdrew her objections with prejudice; thus, she may not now contest her decision to settle the Surrogate's Court Action. "

 

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