Gross v Aronson, Mayefsky & Sloan, LLP 2018 NY Slip Op 31590(U) July 10, 2018
Supreme Court, New York County Docket Number: 153274/2017 Judge: Anthony Cannataro demonstrates how hard it is to link up bad outcomes with a cognizable legal malpractice claim. It’s a matrimonial case in which the father guaranteed legal fee payments for his daughter, involved in a divorce with her husband. Supreme Court found that the father had an insufficient relationship with the law firm to be able to sue, that many of the claims were too speculative and that in general, there was not a lot left on the bone here.
“Plaintiff Jacqueline Toboroff Gross (Jacqueline) entered into a written retainer agreement with defendant Aronson, Mayefsky & Sloan, LLP (AMS) on September 18, 2013. The retainer provided that AMS would seek a settlement agreement with Jacqueline’s husband, Fred Gross (husband), or if that was not possible, represent Jacqueline in subsequent matrimonial proceedings. Jacqueline’s father, Leonard Toboroff (Leonard), served as guarantor on this agreement. When a settlement was not reached, a divorce action was commenced on November 7, 2013. At that time, Jacqueline and her husband’s marital assets included $3,322,000 held in three investment accounts: Shwab Account ending in 6185; Shwab Account ending in 2091; Capital One Account ending in 8194 (together, the Marital Accounts).”
“On its motion to dismiss, AMS argues that it zealously represented Jacqueline throughout three years of litigation, any delay and/or additional expenses were the result of the husband’s recalcitrance, and the instant action is merely an attempt to avoid payment of legal fees.
Defendant asserts that as Leonard was a guarantor rather than AMS’ client, he has no privity of
contract, and therefore his malpractice claims should be dismissed. Defendant further argues
that Jacqueline’s malpractice claims should be dismissed as she has failed to allege facts to support them and documentary evidence precludes a finding of negligence, proximate cause, or damages on the part of AMS. Finally, defendant asserts that the Judiciary Law§ 487 claim fails as no extreme or egregious deceit has been alleged, documentary evidence shows that any prolonging of the action was due to the husband’s actions, and any remedy could only be sought in the underlying matrimonial action.
In response, plaintiff claims that AMS ran up a large legal bill while failing and neglecting to protect Jacqueline’s marital assets and equitable distribution rights. Plaintiffs argue that Leonard signed a written guaranty at AMS’ specific request and insistence, creating privity. Plaintiffs assert that defendant’s malpractice was a result of its failure to timely notify financial institutions of the pending matrimonial action and the December TRO which directly caused plaintiff to permanently lose her equitable distributive award. Plaintiffs also argue that the evidence defendant relied on is legally insufficient to be considered documentary evidence.”
“In this case, Leonard entered into a guarantee agreement with AMS for payment of legal fees associated with Jacqueline’s divorce action and communicated with AMS about Jacqueline’s ongoing case. No facts are alleged that would tend to show that AMS was aware Leonard was relying on their statements or did so for a specific purpose. However, a third party may maintain a malpractice claim against an attorney without privity if the existence of fraud, collusion, malicious acts or other special circumstances is established (Estate of Schneider v Finmann, 15 NY3d 306, 308-309 ).
Here, the only allegations of fraud, collusion, malicious acts, or other circumstances relate to
plaintiffs Judiciary Law § 487 claim, which, as discussed below, is inapposite here. Thus, the
malpractice claims on Leonard’s behalf must be dismissed.”