The Second Department rarely reverses summary judgment in a legal malpractice setting. Of that subset of rare reversals, matrimonial legal malpractice is a very small portion. Nevertheless, in Lauder v Goldhamer
2020 NY Slip Op 01152 Decided on February 19, 2020 Appellate Division, Second Department appellant won all around.
“The plaintiff commenced this action alleging, inter alia, that the defendants committed legal malpractice in the prosecution of an underlying matrimonial action. The plaintiff alleged, among other things, that the defendants’ lack of preparation, as well as the misinformation and faulty legal advice they supplied to her, resulted in an unfavorable, binding stipulation of settlement in the underlying action. The defendants moved for summary judgment dismissing the complaint arguing, inter alia, that their actions did not proximately cause the plaintiff damages. The Supreme Court granted the defendants’ motion, and the plaintiff appeals.”
“Here, the defendants demonstrated, prima facie, the absence of proximate cause by relying on the plaintiff’s on-the-record acquiescence to the terms of the stipulation of settlement in the underlying action. In opposition, the plaintiff raised a triable issue of fact as to whether the [*2]actions of the defendants, in advising her with regard to the stipulation of settlement, proximately caused her damages. Consequently, that branch of the defendants’ motion which was for summary judgment dismissing the cause of action to recover damages for legal malpractice should have been denied (see Birnbaum v Misiano, 52 AD3d 632, 634).
Contrary to the Supreme Court’s determination, the causes of action alleging breach of fiduciary duty and to set aside the retainer agreement were not duplicative of the legal malpractice cause of action, and should not have been dismissed on that basis (see Postiglione v Castro, 119 AD3d 920, 922). Moreover, with regard to the cause of action to set aside the retainer agreement, the defendants failed to eliminate all triable issues of fact pertaining to the terms of the agreement and whether they, in fact, adhered to it (see Becker v Julien, Blitz & Schlesinger, 66 AD2d 674).
The Supreme Court should have denied that branch of the defendants’ motion which was for summary judgment dismissing the cause of action alleging a violation of Judiciary Law § 487, as the defendants failed to eliminate all triable issues of fact regarding “the only liability standard recognized in Judicary Law § 487 . . . of an intent to deceive” (Dupree v Voorhees, 102 AD3d 912, 913).”