Barrett v Goldstein 2017 NY Slip Op 30011(U) January 4, 2017 Supreme Court, New York County Docket Number: 154225/2016 Judge: Arlene P. Bluth is the second half of a two-part decision arising from a divorce mediation which went wrong for plaintiff.  Yesterday, we saw that the mediator was let out of the case.  Today, plaintiff’s attorneys get out too.

“This action arises out of a post-nuptial agreement signed by plaintiff and his wife (Lore~ Comstock) on July 22, 2013. Plaintiffs complaint alleges that defendant Lori Goldstein acted as a mediator between Comstock and plaintiff and that Goldstein helped draft the post-nuptial agreement. Defendants claim they were counsel to plaintiff in connection with the review of Goldstein’s draft agreement and in a subsequent divorce proceeding (initiated in October 2013) for five months, after which plaintiff retained new counsel. Plaintiff claims that defendants failed to advise him that he was waiving certain rights in the post-nuptial agreement and that defendants failed to help plaintiff challenge the validity of the agreement in the divorce litigation. The nature of the instant dispute centers on the plaintiffs unhappiness with the post-nuptial agreement’s distribution of certain assets, including Comstock’s therapy business and plaintiffs farm. ”

“Defendants claim that dismissal is warranted because the language of the post-nuptial agreement refutes plaintiffs claims and plaintiff fails to allege facts demonstrating that defendants’ acts were the ‘but for’ cause of plaintiffs loss or that plaintiff suffered any damages. Defendants further assert that plaintiffs subsequent counsel retained in the divorce action had a chance to challenge the validity of the post-nuptial agreement (and chose not to) and that plaintiffs claims of legal malpractice and breach of fiduciary duty are duplicative. Defendants contend that documentary evidence refutes plaintiffs allegations and demonstrates that plaintiff entered into the post-nuptial agreement willingly and with an understanding of its terms. In opposition, plaintiff claims that the legal advice provided by defendants was incompetent because the terms of the post-nuptial agreement were clearly one-sided in favor of Comstock. Plaintiff asserts that defendants did not educate plaintiff about the financial rights waived in the agreement, especially those rights relating to Comstock’s therapy practice. Plaintiff also cites to a legal fees provision in the post-nuptial agreement as proof that defendants did not competently represent plaintiff. Plaintiff argues that the ‘but for causation’ test is satisfied for his legal malpractice claim because he never would have signed the post-nuptial agreement if defendants had properly advised him. Plaintiff asserts that he would have maintained his right to Comstock’s therapy practice and preserved his separate property (the farm). Plaintiff claims that defendants’ improper filing of the divorce action triggered a “poison pill” provision in the postnuptial agreement, which made it far too risky to challenge the terms of the post-nuptial agreement. Plaintiff claims that his damages (the value of the waived equitable distribution rights) can be determined by experts. ”

“Taken together, these provisions utterly refute the allegations in the complaint. They evidence an agreement whereby plaintiff explicitly acknowledged that he might be giving up some rights, that he viewed these provisions as fair and reasonable, and that he was aware of Comstock’ s financial information. Plaintiff does not dispute that he signed the agreement or claim that he did not understand the provisions. Instead, he asks this Court to find that because (in his view) the agreement is one-sided in Comstock’s favor, no competent lawyer would have let plaintiff sign it. This unsubstantiated claim is not enough to defeat an agreement that states that the post-nuptial agreement was reasonable, that the financial consequences were understood by plaintiff, and that the agreement was entered into voluntarily. The challenged parts of the agreement are written simply; there is no “legalese”. Plaintiff is bound by his signature on an agreement that specifically (and clearly) states that he understood its terms (Bishop v Maurer, 33 AD3d 497, 499, 823 NYS2d 366 [1st Dept 2006]). The Court declines to fundamentally change the terms of an unambiguous postnuptial agreement because plaintiff, with the benefit of hindsight, dislikes its effects. Besides, defendants also submitted emails demonstrating that plaintiff was indeed fully aware of the terms discussed. In fact, Goldstein (the drafter of the agreement) asked whether plaintiff had any further comments or questions about the agreement after receiving an email from Comstock (on which plaintiff was also a recipient) noting that the “farm is fine” (affirmation of defendants’ counsel exh C). Plaintiff responded “no” to this email (id.). Defendants also attached email correspondence that specifically mentions that plaintiffs attorney reviewed the agreement and provided some comments (id. exh E). Plaintiff sent an email to Goldstein stating that it was always his intention to transfer the title to the farm to himself and Comstock (id.). ”