In a matrimonial action, every t must be crossed, and every i dotted.  One reason for this is the tremendous emotional and economic issues which often cause irrational conduct.  Hell hath no fury…like a losing matrimonial litigant.  Walker v Kramer  2018 NY Slip Op 04375  Decided on June 13, 2018  Appellate Division, Second Department is an example of how a spouse just won’t comply.

“During the plaintiff’s divorce action, she retained the defendant Kramer & Rabinowitz, LLC (hereinafter the law firm), to represent her. The defendants Lynn Adair Kramer and Gregory Rabinowitz were the members of the law firm. The law firm negotiated a stipulation of settlement between the plaintiff and her former husband wherein the former husband agreed to pay the plaintiff $300,000 as an equitable distribution award. The stipulation provided that the law firm was to prepare a deed transferring ownership of the marital residence from the former husband, who was the sole titled owner, to the plaintiff and the former husband as “joint tenants in common” as a means to secure the husband’s payment of the equitable distribution award to the plaintiff. It is undisputed that the law firm failed to prepare and record the deed, and that the former husband subsequently encumbered the marital residence with a mortgage that had priority over the plaintiff’s claim against the former husband. Thus, the plaintiff was not able to use her anticipated interest in the marital residence to satisfy the $300,000 owed to her by her former husband. The former husband failed to pay the plaintiff her equitable distribution award, and the plaintiff subsequently commenced this action against, among others, Kramer, Rabinowitz, and the law firm (hereinafter collectively the defendants), inter alia, to recover damages for legal malpractice.”

“We agree with the Supreme Court’s determination, upon renewal, to grant those branches of the plaintiff’s cross motion which were for summary judgment on the issue of liability against the law firm and Rabinowitz on so much of the complaint as alleged legal malpractice. The law firm and Rabinowitz do not dispute that they shared an attorney-client relationship with the plaintiff and that they failed to prepare and record the subject deed (see Lory v Parsoff, 296 AD2d 535; Deb-Jo Constr. v Westphal, 210 AD2d 951). The plaintiff, in support of her renewed cross motion for summary judgment, established, prima facie, that the failure to record the deed constituted legal malpractice, resulting in her inability to sell the marital residence to satisfy the [*3]unpaid equitable distribution award, as intended by the stipulation of settlement. The plaintiff, therefore, established her prima facie entitlement to judgment as a matter of law on the issue of liability against the law firm and Rabinowitz. In opposition, the law firm and Rabinowitz failed to raise a triable issue of fact (see Rehberger v Garguilo & Orzechowski, LLP, 118 AD3d 767). For the same reasons, we agree with the court’s determination to deny those branches of the defendants’ separate motions which were for summary judgment dismissing so much of the complaint as sought to recover damages for legal malpractice against the law firm and Rabinowitz.

However, since there are triable issues of fact with respect to the amount of the plaintiff’s damages, upon renewal, the Supreme Court should not have granted that branch of the plaintiff’s cross motion which was for summary judgment on the issue of damages (see e.g. Kryten Iron Works v Ultra-Tech Fabricators, 228 AD2d 416, 417). Accordingly, the matter must be remitted to the Supreme Court, Suffolk County, for a trial on the issue of damages.

We agree with the Supreme Court’s determination to deny those branches of the defendants’ separate motions which were for summary judgment dismissing so much of the complaint as sought to recover attorneys’ fees against the law firm and Rabinowitz based on their legal malpractice. “Damages in a legal malpractice case . . . may include litigation expenses incurred in an attempt to avoid, minimize, or reduce the damage caused by the attorney’s wrongful conduct” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 443 [internal quotation marks omitted]). The defendants failed to satisfy their prima facie burden of establishing that no such expenses were incurred by the plaintiff.”