A post-matrimonial legal malpractice case has some elements of sadness.  From the court’s decision, desperation is apparent.  Wife has divorced, and four years later still is trying to get what she believes is justice.  Attorney seems to be caught in a cycle of client dissatisfaction and litigation.

What finally emerges as the reason for the decision is the settlement of the matter itself.  This analysis, while elemental, has emerged as a raison d’etra, that is, the settlement wording acts as a barrier to looking at whether the settlement was accurate and whether there were "side-deals,"  Hence, there is no investigation, and no look at the underlying circumstances.  This is another case in the Katebi line.

Castano v Richman; 2011 NY Slip Op 32686(U); October 11, 2011; Sup Ct, Nassau County
Docket Number: 007770/11 ; Judge: Jeffrey S. Brown.  "Plaintiff alleges that she entered into the settlement based upon representations and assurances by defendant that any errors or  missions in the stipulation would be separately dealt with later on by a "private agreement" with the attorney for the plaintiffs former husband. Plaintiff alleges that defendant failed to inform her that she had no recourse to obtain alleged necessar financial items not included in the stipulation of settlement upon allocution in open court. Plaintiff contends that she would never have entered into the  settlement if defendant had not promised her that she could later enter into a side agreement."

"While ‘ra) 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 Oppenheim Co. 160 AD2d 428 430 554 NYS2d 487 (1990)), here, the complaint is contradicted by the evidentiar material submitted on the motion to dismiss (see Guggenheimer Ginzburg, 43 NY2d 268 275 372 NE2d 17, 401 NYS2d 182 (1977)). (Katebi
v. Fink 51 AD3d 424.) The two separate allocutions by plaintiff on May 28, 2008 and May 30
2008 with respect to her underlying matrimonial action, constitute documentar evidence that
contradicts the allegation of legal malpractice. On each occasion during which plaintiff was
allocuted by the court, plaintiff indicated that she was satisfied with the settlement of the action;
that she was satisfied with the services of her attorney; that she understood the terms of the
settlement; that she knew she was giving up the right to a trial of the action; and that she was
entering into the stipulation by her own free will.

Plaintiffs claim that defendant told her what to say for the allocutions is without merit. It would be ineffective assistance of counsel if defendant hadn t advised plaintiff of the types of questions the court would ask her in the allocutions. Additionally, the recorded conversations between the parties is inadmissible evidence on this motion as plaintiff has failed to properly authenticate same by clear and convincing evidence that the tape is genuine and has not been tampered with (see generally, People v. Ely, 68 N. Y.2d 520). "