Garr Silpe, P.C. v Gorman 2019 NY Slip Op 32248(U) July 26, 2019 Supreme Court, New York County Docket Number: 650247/2017 Judge: Kathryn E. Freed illustrates the uneasy fit between matrimonial cases and legal malpractice. Almost overwhelmingly, the legal malpractice comes up as a counterclaim in an attorney-fee case, rather than as a claim. Often, the legal malpractice case is subject to collateral estopped based upon decisions in the matrimonial action. In other circumstances the attorney judgment rule comes up.
“In this action by plaintiff law firm Garr Silpe, P.C. (“plaintiff’ or “the firm”) seeking payment for services rendered to defendant prose Robyn S. Gorman (“defendant” or “Gorman”)
plaintiff moves (motion sequence 003), pursuant to CPLR 32 I I (a)(7), to dismiss defendant’s
counterclaims for failure to state a cause of action. Defendant opposes the motion and moves, by order to show cause (“OSC”) (motion sequence 004), for an order, pursuant to CPLR 3 I 24, compelling plaintiff to comply with her discovery demands, or in the alternative, pursuant to CPLR 3126, precluding plaintiff from introducing evidence due to its failure to provide discovery, staying this action or extending her time to respond to plaintiffs motion seeking dismissal of hercounterclaims, and directing plaintiff to return to her all of defendant’s files in plaintiffs possession. Plaintiff also moves (motion sequence 005), pursuant to CPLR 3025, for an order granting her leave to amend her counterclaims. After oral argument, and after a review of the parties’ motion papers and the relevant statutes and case law, the motions are decided as follows. ”
“Defendant’s first counterclaim in her amended complaint, sounding in legal malpractice,
must be dismissed. Doc. 42. Although defendant sets forth a litany of what she claims are
examples of plaintiffs negligence, she fails to allege that, but for plaintiffs negligence, she would have prevailed in the matrimonial action, a defect fatal to a legal malpractice claim. See Robinson & Miller v Sakow, 121 AD3d 562 (P1 Dept 20i4). Additionally, although plaintiff demands damages in an amount no less than $3 million, she fails to allege “actual, ascertainable damages” incurred as a result of plaintiffs alleged negligence. Sapienza v Becker & Poliako.ff, _AD3d_, 2019 NY Slip Op 05218 (P1 Dept, June 27, 2019). Defendant’s counterclaim for breach of contract is dismissed as duplicative of her legal malpractice cause of action. See Kliger-Weiss Infosys/ems. Inc. v Ruskin Moscou Faltischek. P.C., 159 AD3d 683 (2d Dept 2018). The counterclaim for fraud is also dismissed as duplicative of the breach of contract claim. See Sassoon v CDx Diagnostics, Inc. 172 AD3d 617 (pt Dept 2019). Further, defendant failed to plead the fraud claim with the specificity required by CPLR 3016(b ).
Thus, each of defendant’s counterclaims is dismissed. “