Phillips Nizer LLP v Scollar  2020 NY Slip Op 30791(U) March 13, 2020  Supreme Court, New York County  Docket Number: 154972/2017 Judge: David Benjamin Cohen is an example of how the case within a case doctrine is applied to a legal malpractice counterclaim.  The law firm sued for fees  and the defendant-client counterclaimed for legal malpractice.  The legal malpractice dispute revolved around a custody agreement in a matrimonial case.  As in many such cases, the matrimonial record is replete with stipulations, agreements, rulings and other objective issues that all affect the question of what could the attorney/should the attorney have done?

“To state a cause of action to recover damages for legal malpractice, a plaintiff must allege: (1) that the attorney ‘failed to exercise the ordinary reasonable skill and knowledge
commonly possessed by a member of the legal profession’; and (2) that the attorney’s breach of the duty proximately caused the plaintiff actual and ascertainable damages” (Dempster v Liotti, 86 AD3d 169 [2d Dept 2011] citing Leder v Spiegel, 9 NY3d 836 [2007] cert denied sub nom. Spiegel v Rowland, 552 US 1257 [2008]). Here, defendant’s Answer with Counterclaim did not state a cause of action for malpractice. Although the Answer with Counterclaim was replete with conclusory statements alleging that plaintiff committed malpractice, failed to exercise reasonable care and that the quality of the representation was substandard, it failed to articulate any facts that could give rise to an inference of malpractice. Thus, the Answer withCounterclaim failed to state a cause of action for malpractice.

Although when addressing a CPLR 321 l(a)(7) motion, affidavits may be freely accepted by a court to remedy any defects in the complaint (Rovella v. Orofino Realty Co., 40 NY2d 633
[1976]), here, even considering the untiled opposition and the documents in support of this motion, defendant has still failed to state a claim for malpractice. In these documents, defendant supplements the facts relating to plaintiffs alleged malpractice. However, adding the supplemental facts still does not save the counterclaim from dismissal. Defendant discusses that she disagreed with the necessity of some of the work (and the costs associated with such work), that plaintiff was very expensive as compared to the other side and generally that the costs were not in line with the quality of service provided. None of those “facts” even if true can give rise to a claim for malpractice for failing to exercise ordinary reasonable skill. Defendant also discusses two other specific complaints. First, that her intention and desire was that a stipulation for summer visitation schedule be valid for the future. Defendant complains that the stipulation was unenforceable as it did not include 2017, 2018 and 2019 and only clearly included 2016.

Defendant’s allegations are refuted by the documentary evidence of the stipulation which discusses 2016 and sets forth the schedule for that year and then states in plain language “In
2017 and each year thereafter … the parties will alternate the forgoing schedule” and required the parties to make adjustments as necessary to accommodate the child’s schedule. To the extent that said stipulation was not “so-ordered” by the Court and defendant argues that the failure by plaintiff to have it “so-ordered” made the stipulation unenforceable, the stipulation also contains an express provision that the stipulation shall be enforceable even in the absence of the expected so-ordering. In any event, the Answer with Counterclaim was dated April 23. 2017 (filed on June 6, 2017). According to her affidavit the issues with the Summer 2017 occurred after an incident in September 201 7, which had not occurred at the time she wrote the counterclaim. ”