Matrimonial legal malpractice is typically all about the money – and the money is usually about equitable distribution. Money, or having to give it to someone else drives people insane. in this case it apparently drove the husband to solicit the murder of his wife. Luckily, the plan fizzled, and ended in divorce and equitable distribution instead. After settlement of the divorce case, husband sued his attorney. He lost in summary judgment, in an instructive decision.

In Pascarella v Goldberg, Cohn & Richter, LLP ; 2009 NY Slip Op 52193(U) ; ; Supreme Court, Kings County ; Hinds-Radix, J. we see how the court works its way through plaintiff’s claims. "On December 15, 2003, on the eve of trial on the ancillary issues in the matrimonial action, the parties entered into a stipulation of settlement (the settlement) which was placed on the record in open court before Justice Yancey. The settlement fixed Susan’s equitable distribution award at $400,000 and required that plaintiff pay it to her in lump sum by March 1, 2004.[FN15] In connection with the settlement, plaintiff testified under oath before Justice Yancey that (1) he heard and understood the terms of the settlement as it was placed on the record; (2) he discussed its terms with his lawyer (Mr. Goldberg), had enough time [*4]to speak with his lawyer about it, and required no additional time; (3) he was satisfied with the services of his lawyer; (4) he was not forced, threatened, or coerced to enter into the settlement; (5) the terms of the settlement were acceptable to him; and (6) he promised to live by its terms.
 

"Plaintiff’s first charge of malpractice is that Goldberg was negligent in failing to seek discovery from Susan concerning her non-marital property. The court notes that plaintiff and Susan were married from July 28, 1984 until September 1, 2001, when plaintiff abandoned the marital home, and thus were together for 17 years.[FN24] Yet, plaintiff has never claimed in any of his numerous affidavits filed in this action or in the matrimonial action that Susan had any non-marital property. Nor has plaintiff submitted to the court Susan’s Statement of Proposed Disposition, which was to indicate if she had any separate property. There is not one iota of evidence that suggests that Susan had any separate property. To the contrary, the gravamen of plaintiff’s legal malpractice claim is that plaintiff overpaid Susan because he used his own separate property, and not because Susan already had too much on account of her own separate property. Without some evidence of actual, ascertainable damages flowing from Goldberg’s alleged failure to conduct discovery, this branch of plaintiff’s legal malpractice claim fails (see Luniewski, 188 AD2d at 643).

"Plaintiff’s second charge that the settlement was coerced or fair has no merit. As stated, the matrimonial action was scheduled for trial on the equitable distribution issue when the parties entered into a settlement of $400,000, which was higher than plaintiff’s counter-offer of $300,000 and lower than Susan’s initial offer of $450,000. Plaintiff took the stand where he was allocuted on the settlement. He testified that he understood the settlement, wanted to accept it, and was satisfied with Goldberg’s services as his counsel. Plaintiff’s allegations in support of his claim that the settlement was a product of coercion or duress are inherently incredible and flatly contradicted by documentary evidence, including (1) the minutes of Justice Yancey’s careful and thorough allocution of plaintiff, during which he showed no sign that he was compelled to enter into the settlement, and (2) his "Affidavit of Appearance and Adoption of Oral Stipulation," in which he acknowledged that the terms of the settlement were fully explained to and understood by him, and that he consented to its terms voluntarily and with advice of counsel (see Kinberg v Kinberg, 50 AD3d 512, 513 [1st Dept 2008]).

"As a matter of policy, cases once settled should not be readily re-litigated as to their merits before another judge, where the original party has been released and the plaintiff’s original attorney has become the defendant. "Under those circumstances, the burden must be on the plaintiff seeking such a recovery to demonstrate by evidence rather than by conclusory allegations, that he indeed suffered substantial financial loss because of misdeeds by his attorneys and not by second guessing as to their judgment" (Becker v Julien, Blitz & Schlesinger, P.C., 95 Misc 2d 64, 68 [Sup Ct, New York County 1977], modified on other grounds 66 AD2d 674 [1st Dept 1978], appeal dismissed 47 NY2d 705 and 761 [1979], lv dismissed 47 NY2d 800 [1979]). "