One unique aspect of matrimonial litigation is that a very large percentage of the cases are settled in court, typically on the day of trial.  This leads to in court settlement allocutions.  Settlement in court with a time deadline looming leads to hastily constructed settlement agreements.  While millions of dollars might be at stake, the hurried quality of negotiations and the scrivener’s errors that creep in cause a large number of post-settlement problems.  Nevertheless, there is very little serious legal malpractice litigation that survives substantive motion practice.  Karakash v Trakas 
2018 NY Slip Op 05292  Decided on July 18, 2018  Appellate Division, Second Department is an illustration.

“The plaintiff retained the defendant to represent him in a divorce action. The action was settled by a written stipulation of settlement.

The plaintiff subsequently commenced this legal malpractice action against the defendant. The complaint alleged, among other things, that the defendant had failed to engage in the necessary due diligence to determine the identity and value of the marital assets involved in the underlying divorce action. The complaint further alleged that the plaintiff had been heavily medicated when he entered into the stipulation of settlement and that he did not understand the terms of the stipulation of settlement when he signed it.

The defendant moved pursuant to CPLR 3211(a) to dismiss the complaint. The defendant argued that certain allegations in the complaint were barred by the doctrine of collateral estoppel and that others were conclusively refuted by documentary evidence, which included the stipulation of settlement in the divorce action and a transcript from proceedings in that action. In the order appealed from, the Supreme Court granted the defendant’s motion to dismiss the [*2]complaint. The plaintiff appeals, and we affirm.”

“Here, in support of his motion to dismiss pursuant to CPLR 3211(a), the defendant submitted a copy of a cross motion made by the plaintiff in the underlying divorce action in which he sought to vacate the stipulation of settlement. The defendant also submitted a copy of the Supreme Court’s order in the divorce action which denied the plaintiff’s cross motion. The defendant’s submissions established that the issue of the plaintiff’s competency, and his contention that the stipulation of settlement was entered into based on his misunderstanding of its terms, were matters that were previously determined in the prior divorce action. Accordingly, we agree with the court’s determination that the doctrine of collateral estoppel precluded the plaintiff from re-litigating these issues (see DeGregorio v Bender, 4 AD3d 384, 385).

We also agree that the remaining allegations underlying the complaint were flatly contradicted by the documentary evidence submitted in connection with the defendant’s motion. “On a motion to dismiss under CPLR 3211, the pleading is to be given a liberal construction, the allegations contained within it are assumed to be true and the plaintiff is to be afforded every favorable inference” (Simkin v Blank, 19 NY3d 46, 52; see Leon v Martinez, 84 NY2d 83, 87; Hershco v Gordon & Gordon, 155 AD3d 1007, 1008). At the same time, however, “allegations consisting of bare legal conclusions as well as factual claims flatly contradicted by documentary evidence are not entitled to any such consideration” (Maas v Cornell Univ., 94 NY2d 87, 91 [internal quotation marks omitted]; see Myers v Schneiderman, 30 NY3d 1, 11; Sweeney v Sweeney, 71 AD3d 989, 991). A motion to dismiss a complaint based on documentary evidence “may be appropriately granted only where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter of law” (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326; see Stein v Garfield Regency Condominium, 65 AD3d 1126, 1128).

Here, in support of his motion to dismiss, the defendant submitted a copy of the underlying stipulation of settlement in the divorce action, and a transcript from the divorce proceeding on the day the stipulation was signed by the parties. This evidence flatly refuted the plaintiff’s allegation that the defendant had failed to engage in the necessary due diligence to determine the identity and value of the marital assets involved in the underlying divorce action. [*3]Since the remaining allegations in the complaint were flatly refuted by the defendant’s documentary evidence, we agree with the Supreme Court’s determination to grant the defendant’s motion pursuant to CPLR 3211(a) to dismiss the complaint (see Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 757-758; Weissman v Kessler, 78 AD3d 465, 466; Katebi v Fink, 51 AD3d 424, 425; Pacella v Whiteman Osterman & Hanna, 14 AD3d 545, 545-546; Laruccia v Forchelli, Curto, Schwartz, Mineo, Carlino & Cohn, 295 AD2d 321, 321-322).”

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Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.