Weintraub v Petervary 2017 NY Slip Op 51595(U) Decided on November 16, 2017 Appellate Term, Second Department is an example of how lower courts over-determine cases in favor of the attorney and to the detriment of the client. Legal malpractice cases, we have argued in the past, are dismissed at a greater rate than in the general inventory of cases, and courts routinely delve into the specifics of cases rather than review the pleadings.
“Appeal, and cross appeal on the ground of inadequacy, from a judgment of the District Court of Suffolk County, Third District (C. Stephen Hackeling, J.), entered February 13, 2015. The judgment, entered upon so much of an order of that court dated January 31, 2014 as granted plaintiff’s motion for summary judgment dismissing the counterclaim, and after a nonjury trial of plaintiff’s cause of action, awarded plaintiff the principal sum of $5,092 and implicitly dismissed defendant’s counterclaim. Defendant’s appeal from the judgment brings up for review so much of an amended order of that court dated February 20, 2015 as denied the branch of defendant’s motion seeking leave to file an amended answer to add affirmative defenses (see CPLR 5501 [a] ).
ORDERED that the judgment is reversed, without costs, so much of the order dated January 31, 2014 as granted plaintiff’s motion for summary judgment dismissing the counterclaim is vacated; plaintiff’s motion for summary judgment dismissing the counterclaim is granted only to the extent of granting plaintiff partial summary judgment dismissing so much of the counterclaim as seeks to recover for legal malpractice based on plaintiff’s alleged failure, while representing defendant in a Supreme Court equitable distribution action, to establish that, [*2]under Hungarian law, defendant had entered into a common-law marriage with her former spouse prior to their New York marriage; so much of the amended order dated February 20, 2015 as denied the branch of defendant’s motion seeking leave to file an amended answer is vacated; and the matter is remitted to the District Court for a new determination of that branch of defendant’s motion and, thereafter, for a new trial on plaintiff’s cause of action and on the remaining portions of the counterclaim;”
“Defendant and Nicholas Petervary (Nicholas) were married in New York on November 15, 1998 and were divorced by a Hungarian court in March 2007. The Hungarian court referred to the New York courts the issues regarding the distribution of property located in New York. On January 30, 2008, defendant retained plaintiff to represent her in a postdivorce action for equitable distribution, which was thereafter commenced in the Supreme Court of Suffolk County on February 8, 2008. After Nicholas failed to appear in that action, an inquest was held in 2009, following which the Supreme Court did not award defendant the portion of the assets to which she felt she was entitled, and denied her an award of counsel fees on the ground that plaintiff had not submitted his invoices to the court. Plaintiff was discharged by defendant on March 16, 2010. Plaintiff subsequently commenced this action to recover for legal services he had rendered in the Supreme Court action between February 2, 2008 and March 11, 2010, alleging a balance due of $12,582.48.
In her answer, defendant generally denied the allegations of the complaint and interposed a counterclaim, contending that, because plaintiff had committed legal malpractice in the Supreme Court action, he was not entitled to be reimbursed for any of the legal services he had rendered therein. Essentially, defendant alleged four instances of plaintiff’s malpractice, to wit, that plaintiff had failed to: (1) establish that defendant had entered into a valid common-law marriage with Nicholas, pursuant to Hungarian law, prior to their November 1998 marriage, which proof would have enhanced defendant’s entitlement to equitable distribution of the marital assets located in New York; (2) promptly obtain and serve a temporary restraining order on Citibank/Smith Barney, which would have prevented Nicholas from removing funds which, she alleged, constituted marital property, from an account held at that institution; (3) secure an expert appraiser to testify at the inquest in the Supreme Court action regarding the appreciation, during the marriage, of the value of the marital residence, which had been owned by Nicholas prior to their 1998 marriage, in order to demonstrate defendant’s entitlement to an interest therein; and (4) submit to the Supreme Court the invoices pertaining to his representation of defendant, resulting in the court’s denial of her application for an award of attorney’s fees.”
“Contrary to the District Court’s determination dismissing so much of the counterclaim as was based upon plaintiff’s failure to retain an appraiser, promptly restrain the Citibank/Smith Barney account, and annex his invoices to the counsel fee application, we find that plaintiff failed to establish his prima facie entitlement to judgment as a matter of law, as his submissions in support of his motion with respect to these three alleged instances did not demonstrate that defendant will be unable to prove either that plaintiff did not exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession or that the breach of this duty proximately caused defendant’s damages. Consequently, so much of plaintiff’s motion as sought summary judgment dismissing defendant’s counterclaim based upon these three alleged instances of legal malpractice should have been denied.”