Siracusa v Sager   2011 NY Slip Op 32244(U);August 3, 2011;Supreme Court, Suffolk County; Docket Number: 06-35942; gives Judge: Peter Fox Cohalan the opportunity to review a many faceted matrimonial child support legal malpractice case. Aside from the question of why a father would resist paying $ 125 a week in child support, the case seems to hinge on whether and who made tactical decisions, and to what extent the plaintiff participated.

"The plaintiff commenced this action against the defendants Jeffrey Horn, Esq., Horn & Horn, Esq., and Horn, Horn & Ramme, Esq. (hereinafter collectively referred to as the Horn defendants), and Audrey Sager, Esq., Steven Gellerman, Esq., and Sager & Gellerman, Esq. (hereinafter collectively referred to as the Sager defendants) to recover damages he allegedly sustained as a result of their legal malpractice. The gravamen of the plaintiffs complaint is that Jeffrey Horn, Esq. and Audrey Sager, Esq. failed to confer with or prepare the plaintiffs certified public accountant, William Carney (hereinafter CPA), to testify on the plaintiffs behalf or to introduce documents from the CPA into evidence; that they advised the plaintiff to enter into a stipulation to modify his custodial arrangement from sole custody to joint custody; arid that they failed to make an application to disqualify the plaintiffs former wife’s attorney during their matrimonial action."

"In 1998, the plaintiff retained the Sager defendants to represent him in an action seeking sole custody of his infant daughter. Following the filing of a petition for sole custody, the plaintiffs wife commenced a separate action f’or a judgment of divorce. On March 12, 1999, they entered into a stipulation resolving the issues of custody and visitation and, on June 16, 1999, a judgment of divorce was granted. Under the March 12, 1999 stipulation, the plaintiff was designated as the non-custodial parent for child support purposes and the plaintiffs former wife was designated as the primary custodian. On December 8, 2000, the parties entered into a stipulation modifying the March 12, 1999 stipulation of custody. Pursuant to the new custody stipulation, the parents were given joint custody of the infant child, with the plaintiff designated as the primary custodial parent and his former wife designated as the secondary custodial parent. However, the issue of child support was left unresolved and a hearing on the issue of child support was scheduled."

"In opposition, the plaintiff has failed to demonstrate that the Horn and Sager defendants committed malpractice by allegedly not calling the plaintiffs CPA as a witness, by advising him
to enter into a modification of his March 12, 1999 child custody stipulation, or by failing to move to disqualify his former wife’s counsel (see generally Waggoner v Caruso, 14 NY3cl 874, 903 NYS2d 333 [2010]; Davis v Klein, 88 NY2d 1008, 648 NYS2d 871 [1996]). In any event, the plaintiff has failed to present any proof that such alleged failures were the proximate cause of any damages sustained by the plaintiff (see Leder v Speigel, 9 NY3d 836, 840 NYS2d 888 [2007]; Manna Fuel Oil Corp v Ades, 14 AD3d 666,789 NYS2d 288 [2d Dept 20051). The trial Court conducted a thorough hearing on the child support issue and noted that the testimony of the plaintiff was “evasive, contrived, inconsistent, and designed to obfuscate the financial issues before the court,” and that the plaintiffs explanations for his failure to produce tax returns, bank statements and checks was best described as “blase, indifferent and unconcerned.” The trial Court also noted in its  determination that the plaintiffs lifestyle and living accommodations bordered on lavish. Moreover, the plaintiffs claim of damages remains speculative and unascertainable (see Parola, Gross & Marino, P.C. v Susskind, 43 AD3d 1020, 843 NYS2d 104 [2d Dept 20071; Dweck Law Firm v Mann, 283 AD2d 292,727 NYS2d 58 [Ist Dept 20011, Oot v Arno, 275 AD2d 1023,713 NYS2d 382 [4th
Dept 20001). Additionally, the CPA’s affidavit is without probative value since he states that he does
not have personal knowledge, and that his knowledge is based upon “what the plaintiff told
him and the documentation that he received from the plaintiff.” Despite its lack of probative
value, even if the Court were to consider this affidavit, the CPA fails to explain how the application of the “Gross Profits Tests” by the plaintiffs former wife’s expert, which found that the plaintiffs company was grossly understating its income, was an incorrect assessment. "