Bullock v Miller  2016 NY Slip Op 08268  Decided on December 8, 2016  Appellate Division, Third Department is a perfect example of how the “but for” portion of the legal malpractice world works, or alternatively, an example of how court tend to protect attorneys from their own mistakes.

Plaintiff demonstrates at least one statutory shortcoming where the attorney simply failed to argue that the child support statute required certain missing findings of fact.  That however is just not enough to avoid summary judgment.

“Plaintiff retained defendant Miller Mayer, LLP to represent her in a divorce action, with the legal work performed by defendant R. James Miller. Miller commenced an action for divorce on plaintiff’s behalf by filing a summons with notice in January 2009, but did not serve it, instead electing to prosecute a second action commenced in July 2009. Plaintiff and her husband appeared for trial on September 3, 2010, and counsel placed a stipulation on the record that resolved all outstanding issues. They stipulated as to the division of expenses relating to two children under the age of 21 and also agreed, in conclusory fashion, to waive any other child support obligation. Miller agreed to, but did not, submit a proposed judgment of divorce for signature by December 1, 2010. Supreme Court received and executed a judgment of divorce [*2]later that month, and executed an amended judgment of divorce in February 2011.

Plaintiff retained new counsel and made an unsuccessful motion in the divorce action to, among other things, reopen the issue of child support by vacating the relevant provisions of the stipulation. She then commenced action No. 2 and alleged that defendants had committed legal malpractice in their representation of her. Following joinder of issue and discovery, defendants moved, and plaintiff cross-moved, for summary judgment. Plaintiff appeals from the July 2014 order granting defendants’ motion and dismissing the complaint in action No. 2”

“Turning to the record that is before us, we affirm. In order to succeed on a claim for legal malpractice, a plaintiff must show “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, brackets and citations omitted]; see Dombrowski v Bulson, 19 NY3d 347, 350 [2012]). Defendants, as the proponents of a motion for summary judgment, bear the initial burden of “present[ing] evidence in admissible form establishing that plaintiff is unable to prove at least one of these elements” (Ehlinger v Ruberti, Girvin & Ferlazzo, 304 AD2d 925, 926 [2003]; accord Miazga v Assaf, 136 AD3d 1131, 1133-1134 [2016], lv dismissed 27 NY3d 1078 [2016]). Contrary to defendants’ contention, the “conclusory, self-serving statements” of Miller regarding the applicable standard of care did not constitute “expert . . . evidence which would tend to establish . . . that [defendants] did not” depart from it (Estate of Nevelson v Carro, Spanbock, Kaster & Cuiffo, 259 AD2d 282, 284 [1999]; see 400 E. 77th Owners, Inc. v New York Eng’g Assn., P.C., 122 AD3d 474, 475 [2014]; cf. Ehlinger v Ruberti, Girvin & Ferlazzo, 304 AD2d at 926). As a result, the issue “distills to whether defendant[s] met [their] threshold burden as to the element of either proximate cause or damages” (Arnold v Devane, 123 AD3d at 1204; see Schrowang v Biscone, 128 AD3d 1162, 1164 [2015]; Carey v Campbell, 93 AD2d 923, 923-924 [1983]).

Defendants met that initial burden by submitting competent proof — including the affidavit of Miller, his and plaintiff’s deposition testimony and documentary evidence — that any breach of duty on defendants’ part did not result in damages to plaintiff. Plaintiff and her husband both claimed to be the custodial parent of their children, and she asserted that Miller committed malpractice by failing to pursue an award of child support on her behalf. Miller explained that he did not do so because plaintiff would not have been found to be the custodial parent, a belief justified by the refusal of Supreme Court to order either party to pay temporary child support and an investigation that led Miller to believe that the children either lived on their own or spent the bulk of their time with the father. Miller therefore declined to do anything that could backfire and end in plaintiff paying child support, and instead negotiated a settlement in which neither party would pay child support. In response to this proof, plaintiff continued to assert that she was the custodial parent. She provided nothing to show that an application for [*3]child support would have succeeded, however, and did not raise a question of fact as to whether she was damaged by the failure to make one (see Miazga v Assaf, 136 AD3d at 1134; Sevey v Friedlander, 83 AD3d 1226, 1227 [2011], lv denied 17 NY3d 707 [2011]).

Plaintiff’s additional challenges to the actions of defendants do not demand extended discussion. She complained that defendants committed malpractice in not prosecuting the first divorce action commenced. That being said, defendants provided proof that she was benefitted by that delay, as settlement negotiations were underway prior to the commencement of the second divorce action and plaintiff received far more in voluntary spousal support during that period than she was entitled to (and subsequently received) in court-ordered maintenance. Lastly, while Miller admittedly failed to include necessary language in the stipulation regarding the presumptively correct basic child support obligation and the reasons for deviation from that amount (see Domestic Relations Law § 240

[1-b] [h]), as noted above, there is little to show that plaintiff was damaged by the failure to pursue the issue of child support more vigorously [FN2]. Her remaining contentions, to the extent that they are properly before us, have been considered and rejected.”