In one of the few applications of Grace v. Law to date, Supreme Court dismisses a legal malpractice case. More than this rare application of Grace, the court dismisses on a question of law.
The facts are simple in Dinerman v Fox 2018 NY Slip Op 30127(U) January 16, 2018 Supreme Court, Kings County Docket Number: 513181/2016 Judge: Bernard J. Graham . Husband signs a stipulation to pay 50/50 for his daughter’s college. When she reaches 21, he decides not to continue paying. Wife is, as might be guessed, unhappy.
“Fox had represented Dinerman in a divorce proceeding between Dinerman and his spouse, Mary
Bergam (Supreme Court Kings Co., Index No. 52375/13). As part of the divorce proceedings, a preliminary conference was held on August 1, 2013. An order was entered upon stipulation of the parties providing for various interim relief and discovery to be conducted. The August 1, 2013 order (the “Preliminary Conference Order”) provides in the section entitled Pendente Lite Relief, the following:
“The parties shall pay 50/50 the following expenses: Carrying charges on the marital home; college
expenses for Katherine, tutoring and college prep fees for Daniel”.
The plaintiffs legalmalpractice case is rooted in the fact that there is no provision for the plaintiff to
discontinue the college expenses for his daughter Katherine after she turns 21 years of age. It is
plaintiffs contention that, while he voluntarily agreed to stipulate payment of his daughter’s college
tuition, he had been advised by his then attorney (Fox) that he would not be obligated to pay for expenses after his daughter turned 21.”
“The Court has reviewed the decision of Justice Thomas and, based on the well-thought reasoning
contained therein, it is this Court’s opinion that the decision allows for the possibility (or even
likelihood) that Justice Thomas would have ordered Dinerman to bear responsibility for the payment of his daughter Katherine’~ college expenses until she completed college, regardless of whether Dinerman sought to limit his responsibility for the period ending when his daughter turned 21 years of age. If this possibility exists, it would be impossible to find Dinerman’s attorney’s action to be the proximate cause of his alleged damages.
In any event, this Court is compelled to dismiss the action grounded in legal malpractice based upon the accepted case law in New York. As argued by defendant’s counsel, Dinerman can not establish a prima facie case for legal malpractice without establishing that he sought to appeal the decision of Justice Thomas. (See Grace v Law, 24 NY3d 203 ; see also Buczek v Dell & Little, 127 AD3d 1121 [2d Dept. 2015]).
This argument is relevant given that the accepted rule is that a parent is not obligated to support a
child after the child turns 21 years of age (See Family Court Act sec. 413(1); Social Service Law sec.
101(1); Bani-Esraili v Lerman, 69 NY2d 807 ). Based upon the statutory law limiting the
obligation to support his child until she turned 21 years of age and the fact that there was nothing
explicitly stated as to the cut-off of college obligations when his daughter turned 21 years of age, it is
entirely possible that Dinerman would be “likely to succeed” on an appeal of Justice Thomas’ decision.
Consequently his failure to appeal would bar a legal malpractice claim. (Grace v Law, 24 NY3d at 211). Dinerman can not establish that Fox’s alleged negligence proximately caused his damages. “