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.”