Divorce proceedings lead to a large number of legal malpractice inquiries. They are generally in the nature of “I did not get enough/gave too much in the divorce. Is it legal malpractice? Sometimes it is. In Tanenbaum v Molinoff 2014 NY Slip Op 04186 [118 AD3d 774] June 11, 2014 Appellate Division, Second Department it was not. Plaintiff did not get his attorney fees paid by the more monied spouse. The suit was for legal malpractice, which the Court and the AD found lacking.
“Here, the defendant established that he was entitled to the dismissal of the first cause of action, which alleged legal malpractice, pursuant to CPLR 3211 (a) (1) and (7). Contrary to the plaintiff’s contentions, the complaint in this action, as well as certain documentary evidence before the Supreme Court, including, inter alia, a portion of the settlement agreement between the plaintiff and his former wife, conclusively established as a matter of law that, under the terms of the settlement agreement (see generally Trinagel v Boyar, 99 AD3d 792, 792 ; Matter of Berns v Halberstam, 46 AD3d 808, 809 ), the plaintiff was not entitled to an award of an attorney’s fee in the proceeding against his former wife before the Family Court (see Matter of Tanenbaum v Caputo, 81 AD3d 839 ), and that the defendant therefore did not commit malpractice in failing to obtain an award of an attorney’s fee in that proceeding. Moreover, the retainer agreement between the parties here conclusively refuted any claim based on the plaintiff’s allegation that the defendant assured him that the plaintiff’s former wife would be responsible for the payment of all legal fees in that proceeding. Accordingly, the Supreme Court properly granted that branch of the defendant’s motion which was to dismiss the first cause of action pursuant to CPLR 3211 (a) (1) and (7).”