Matrimonial legal malpractice cases are difficult for plaintiff.  Generally they end in a settlement and courts have held that mere settlement (even if effectively compelled by mistakes of counsel) will not permit a legal malpractice case to be brought.  Other courts have held that the allocution which generally  accompanies an in-court settlement serves to immunize the attorneys when plaintiff answers the Court’s question and says that they are satisfied with the attorney’s work.

Here, in Blumencranz v Botter  2020 NY Slip Op 02452 Decided on April 29, 2020 Appellate Division, Second Department, against great odds, the motion for summary judgment was denied and affirmed on appeal.

“”In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442, quoting McCoy v Feinman, 99 NY2d 295, 301). In order to be entitled to summary judgment, the movant “must make a prima facie showing of entitlement to judgment as a matter of law, tendering sufficient evidence to eliminate any material issues of fact from the case” (Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853).

Here, the defendant failed to demonstrate the absence of triable issues of fact as to whether his actions in advising the plaintiff with regard to the stipulation of settlement evidenced a failure on his part to exercise the requisite level of skill and knowledge, and whether those actions were a proximate cause of any damages incurred by the plaintiff. Since the defendant failed to meet his prima facie burden, we agree with the Supreme Court’s determination denying his motion for summary judgment dismissing the amended complaint (see Birnbaum v Misiano, 52 AD3d 632, [*2]634), regardless of the sufficiency of the plaintiff’s opposition papers (see generally Winegrad v New York Univ. Med. Ctr., 64 NY2d at 853).”