Defendants took a very aggressive approach to a legal malpractice case, and in a turnaround, the Court awarded summary judgment to plaintiff.  One wonders what would have happened if no motion was made in the first place.

Walker v Kramer   2014 NY Slip Op 33372(U)  December 22, 2014  Supreme Court, Suffolk  County  Docket Number: 5219/07  Judge: Paul J. Baisley is a discussion of the ";law of the case," how Appellate Division decisions affect Supreme Court decision making, and what the "but for" principal of legal malpractice means.

"Plaintiff commenced this action to recover damages she allegedly suffered as a result of
defendants’ legal malpractice. By an order of this Court dated December 1 1,2007, the complaint was dismissed in its entirety as against defendants Debra L. Rubin, Esq., Gayle Rosenblum, Esq.,
Rubin and Rosenblum, PLLC, and Kramer & Rubin, PLLC (Walker v Kramer, Sup Ct, Suffolk
County, December 1 1,2007, Baisley, J., Index No. 52 19/07). Although the order dismissed the
claims against Lynne Adair Kramer, Esq. and Kramer & Rabinowitz, LLC, pursuant to CPLR
R. 321 1 (a)( 1) and (7), the Appellate Division modified the order, reinstating the legal malpractice
claims against them (Walker v Kramer, 63 AD3d 723,880 NYS2d 677 [2d Dept 20091). In its
December 1 1,2007 decision, this Court denied plaintiffs application for summary judgment,
indicating that it was premature as no answers had been filed. Discovery having been completed,
and a note of issue having been filed, defendants now move for summary judgment dismissing the
complaint. They maintain that plaintiff has not sustained any damages, thus she cannot prove her
claim for legal malpractice. Plaintiff opposes their motions and interposes a cross-motion, asking
the Court to grant leave to renew her prior summary judgment motion and upon such renewal
grant summary judgment in her favor. She claims that the Appellate Division decision (id.)
constitutes the “law of the case” as it refers to liability by reason of defendants’ legal malpractice.
On May 14,2003, by written agreement, plaintiff retained the law firm of Wachtel &
Rabinowitz to represent her in a divorce action she commenced against her former husband.
Some eleven days thereafter, Gregory Rabinowitz, Esq. merged his law practice with that of
Lynne Kramer, Esq. and formed Kramer & Rabinowitz, LLC which represented plaintiff until
March 24,2006. On April 4,2004 plaintiff entered into a stipulation settling her matrimonial
action, which was incorporated but not merged into a judgment of divorce dated November 18,
2004 and filed with the County Clerk on December 7,2004. Pertinent portions of the stipulation
of settlement stated:

Within ten (10) days from the execution of the within Stipulation, the
plaintiffs attorney shall prepare all of the necessary documents for the
defendant, to transfer his right, title and interest in and to the premises to
the Plaintiff and Defendant as “joint tenants in common” by Bargain and
Sale Deed With Covenants Against Grantors Acts, which deed and
transfer papers shall be immediately filed at the defendant’s sole cost and
expense. Plaintiffs attorney shall also prepare a Bargain and Sale Deed
With Covenants Against Grantors Acts and any additionally required
transfer documents necessary to transfer the residence from the parties as
joint tenants in common to the defendant alone, which will be executed by
the parties and held by Plaintiffs attorneys in escrow subject to the further
terms and provisions hereinafter set forth. Within 5 days from execution of
this Stipulation Defendant shall pay Plaintiffs attorneys $500 to prepare
the above deeds and shall thereafter pay the filing fees within 7 days of
presentment of the title bill [ .] "

"The parties do not dispute that plaintiffs former husband paid defendant Kramer & Rabinowitz,
LLC the $500.00 legal fee required of him for the preparation of the deeds for the marital residence as mandated by the stipulation. However, also undisputed is the fact that no deed was ever  prepared or filed by defendant Kramer & Rabinowitz, LLC in connection therewith. It appears that plaintiff’s former husband refinanced the marital premises shortly after the parties were divorced, using the proceeds to satisfy an existing mortgage and retaining approximately $800,000.00 for his own devices. Plaintiff alleges that she never received her $300,000.00 tax free equitable distribution payment from her husband and that the failure of the defendants to secure her payment by preparing and recording a deed in to her as stated in the stipulation of settlement amounted to legal malpractice for which she should be compensated."

"Although plaintiff may have received more than was originally anticipated by way of maintenance and carrying charges, there is no question but that she did not receive the equitable share of marital property to which she was entitled. Defendants’ arguments that plaintiff suffered no  damages because she was paid a “windfall” of maintenance and carrying charges is unpersuasive. Moreover, such an argument is specious and speculative. Inasmuch as plaintiff was entitled to receive a “lump sum” payment of equitable distribution, the parties could just as easily speculate that she would have invested that money and made “millions” in a business or other investment. Defendants’ failure to secure that payment cannot be set aside by their claims of “offset.” The fact that the stipulation provided for longer duration maintenance and for the payment of carrying charges by plaintiffs former husband in the event he failed to pay the “lump sum” equitable distribution award was not in lieu of the equitable distribution, but was an inducement for him to make the payment in a timely fashion. Thus, defendants failed to prove their claim that plaintiff did not sustain any damages as a result of their failure to secure the equitable distribution payment by preparing the deed as provided by the stipulation of settlement, and summary judgment dismissing the complaint is denied. "

"The Appellate Division found that there was insufficient documentary evidence submitted by defendants in support of their earlier motion to dismiss, and that the facts in the complaint stated a cause of action for legal malpractice. The Appellate Division did not, however, determine the merits of the legal malpractice claim. Thus, the doctrine of res judicata is inapplicable and does not bind this Court (see Wilson v New York City Hous. Auth., supra). However, inasmuch as plaintiff has proven through her submissions that “but for” defendants’ failure to prepare and record a deed securing her equitable distribution award, she would have been able to receive. her award through a sale of the premises prior to her former husband’s encumbering the marital residence with mortgages in excess of its value, she is entitled to summary judgment in her favor and her motion is granted. "