Common to legal malpractice litigations are changes to attorney representation during the underlying case. These changes of attorneys raise not only the statute of limitations, but also the successor counsel principle. Hufstader v Friedman & Molinsek, P.C. 2017 NY Slip Op 03996
Decided on May 18, 2017 Appellate Division, Third Department is an excellent example.
“In December 2005, plaintiff retained defendants to represent her in an action for divorce. On October 1, 2007, on the first day of trial in the divorce action, plaintiff’s husband moved to dismiss the complaint for failure to establish grounds for divorce, and Supreme Court (Seibert, J.) granted the motion and dismissed the complaint. In September 2010, plaintiff commenced an action against defendants for, as pertinent here, legal malpractice and breach of contract related to the divorceaction. Defendants moved for summary judgment dismissing the complaint, which Supreme Court (Crowell, J.) granted on the grounds that plaintiff failed to establish proximate cause as to her legal malpractice cause of action and that the breach of contract cause of action was duplicative of the malpractice claim [FN1]. Plaintiff appeals.
To succeed upon the legal malpractice claim, plaintiff was required to demonstrate that defendants “failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession,” that this failure was the proximate cause of actual damages to plaintiff, and that “the plaintiff would have succeeded on the merits of the underlying action but for the attorney’s negligence” (Levine v Horton, 127 AD3d 1395, 1397  [internal quotation marks and citations omitted]; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 ; Miazga v Assaf, 136 AD3d 1131, 1133 , lv dismissed 27 NY3d 1078 ). Upon their application for summary judgment, defendants “were required to present evidence in admissible form establishing that plaintiff is unable to prove at least one of these elements” (Country Club Partners, LLC v Goldman, 79 AD3d 1389, 1391  [internal quotation marks and citation omitted]; see Miazga v Assaf, 136 AD3d at 1133-1134).
Plaintiff’s primary contention is that defendants’ alleged mistakes resulted in the dismissal of the underlying divorce action, and thus compelled her to subsequently enter into a separation agreement with her husband. One of the arguments raised by defendants in opposition is that the circumstances of plaintiff’s execution of the separation agreement, while represented by successor counsel, establish that defendants cannot be the proximate cause of plaintiff’s alleged damages. Generally, the settlement of an underlying action will not preclude a claim for legal malpractice (see Schrowang v Biscone, 128 AD3d 1162, 1164 ; Katz v Herzfeld & Rubin, P.C., 48 AD3d 640, 641 ; Somma v Dansker & Aspromonte Assoc., 44 AD3d 376, 377 ). However, the element of proximate cause cannot be established where a plaintiff has entered into a settlement while represented by successor counsel and the “successor counsel had sufficient time and opportunity to adequately protect [the] plaintiff’s rights” in the underlying action (Somma v Dansker & Aspromonte Associates, 44 AD3d at 377; see New Kayak Pool Corp. v Kavinoky Cook LLP, 125 AD3d 1346, 1349 ; Alden v Brindisi, Murad, Brindisi, Pearlman, Julian & Pertz [“The People’s Lawyer”], 91 AD3d 1311, 1311 ; Katz v Herzfeld & Rubin, P.C., 48 AD3d at 641).”
“Accordingly, Supreme Court properly granted defendants’ motion for summary judgment dismissing this cause of action (see Miazga v Assaf, 136 AD3d at 1134-1135).”