Matrimonial Legal Malpractice

Suri Katebi, Plaintiff-Appellant, v Paul Fink, et al., Defendants-Respondents.

SUPREME COURT OF NEW YORK,
APPELLATE DIVISION, FIRST DEPARTMENT

2008 NY Slip Op 4141
May 1, 2008, Decided
May 1, 2008, Entered

Clients are often asked at an allocution, settling a matrimonial action whether they are satisfied with their attorney’s work. It is highly questionable whether they, at that time, knew whether the work is satisfactory or not, but the practice goes on.

Here is a legal malpractice case, arising from a matrimonial action which, at least in part, depends on this practice.

“While "[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 & Co., 160 AD2d 428, 430, 554 N.Y.S.2d 487 [1990]), here, the complaint is contradicted by the evidentiary material submitted on the motion to dismiss (see Guggenheimer v Ginzburg, 43 NY2d 268, 275, 372 N.E.2d 17, 401 N.Y.S.2d 182 [1977]). Plaintiff testified that she did not wish to proceed with the trial of the matrimonial action, that she decided instead to enter into the stipulation of settlement because she wanted no further connection with her husband, that she understood that by settling the action before the completion of the trial she was foregoing the right to pursue [**2] the funds allegedly dissipated by him, and that she was satisfied with the services provided by her attorney.

We have considered plaintiff's remaining contentions and find them unavailing.
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