Last week we discussed two 2d Department decisions on the issue of settlement and a subsequent legal malpractice case.  Today, a new decision from the Third Department.  Schrowang v Biscone   2015 NY Slip Op 03910   Decided on May 7, 2015  Appellate Division, Third Department brings up a familiar trope in matrimonial law.  Attorneys are paid by the hour and work diligently or not so intelligently during the discovery phase of the case.  The wife gets, or does not get pendente lite  support during this phase of the litigation.  Then, as if it were a surprise, comes the TRIAL!   Often, the attorney is less than admirably prepared, and has not obtained the proofs of husband’s assets for trial. So, the parties are often faced with a “settle or I quit!” scenario, or with a demand for $10 or $20 Thousand, or even more, again with the threat of quitting just before trial.  Courts accelerate this problem by letting divorce attorneys off the case just before trial.

In Schrowang the result is unusual. The legal malpractice is not dismissed.  “Plaintiff retained defendant to represent her in a divorce action. On July 25, 2012, the day the trial was scheduled to begin, plaintiff and her husband signed a settlement agreement wherein, among other things, plaintiff agreed to vacate the marital residence and list the property for sale within 90 days. In September 2013, plaintiff commenced this legal malpractice action alleging that defendant failed to take steps to enforce a temporary order of protection and automatic orders pursuant to Domestic Relations Law § 236, did not prepare for trial, and that he instead “browbeat[]” plaintiff into signing the agreement.

Following joinder of issue, defendant moved for dismissal of the legal malpractice action pursuant to CPLR 3212, alleging that plaintiff failed to state a cause of action pursuant to CPLR 3211 (a) (1) (7). Plaintiff moved for partial summary judgment on liability. Supreme Court denied both motions, prompting this appeal by defendant.

A viable cause of action for legal malpractice exists where a plaintiff demonstrates “that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney’s breach of this duty proximately caused [the] plaintiff to sustain actual and ascertainable damages” (Arnold v Devane, 123 AD3d 1202, 1203-1204 [2014] [internal quotation marks and citation omitted]; see Hyman v Schwartz, 114 AD3d 1110, 1112 [2014], lv dismissed 24 NY3d 930 [2014]). Here, plaintiff alleged that during [*2]the pendency of the divorce action, she informed defendant that her husband had removed her name from their joint checking account, took more than $100,000 from his retirement account, removed marital assets worth approximately $75,000 from the marital residence,[FN1] transferred title of their vehicle to his name only and engaged in certain conduct in violation of a temporary order of protection. Further, according to plaintiff, defendant told her that he planned to have three people testify at the trial, but she learned the day before the scheduled trial date that defendant had not served trial subpoenas on these individuals. Plaintiff further alleged that, because he was not prepared on the day of trial, defendant negotiated a separation agreement with her husband’s counsel without explaining it to her and without her consent. As defendant concedes, plaintiff told defendant in advance of the trial that her priority was to remain in the marital residence, where she lived with her teenaged daughter and her elderly, infirm mother. Nonetheless, on the day of trial defendant told plaintiff that if she did not sign the agreement, the trial court would force her to vacate the marital residence within 10 days. Plaintiff acknowledges that she signed the agreement, then left the courthouse because defendant told her that it was closing for lunch and, when she returned, she was advised that her case had been called and the separation agreement had been placed on the record in her absence.”

“Here, as defendant has not submitted any expert evidence with regard to whether the services before us provided to plaintiff met the applicable standard of care, “the issue distills to whether defendant met his threshold burden as to the element of either proximate cause or damages” (Arnold v Devane, 123 AD3d at 1204 [2014]). We disagree with defendant’s argument that plaintiff cannot establish either of these elements because she settled the underlying divorce action. Where, as here, the underlying claim is resolved by agreement, this element may be established by evidence that the “settlement . . . was effectively compelled by the mistakes of counsel” (Marchell v Littman, 107 AD3d 1082, 1083 [2013], lv denied 22 NY3d 856 [2013] [internal quotation marks and citations omitted]; see Lattimore v Bergman, 224 AD2d 497 [1996]). While defendant insisted that he negotiated the “best terms” possible, he fails to explain whether or to what extent defendant was familiar with the value of the marital property, whether he investigated plaintiff’s complaints that the husband had taken substantial marital assets in violation of Domestic Relations Law § 236, or whether he was prepared to present any evidence at trial with respect to the marital property on his client’s behalf. Rather, defendant cites the trial judge’s schedule and observations with regard to the marital residence and plaintiff’s “hyster[ia]” as the reason why he encouraged his client to settle the action on the terms that he negotiated.”

Email this postTweet this postLike this postShare this post on LinkedIn
Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.