A frequently repeated principle of legal malpractice is that the “but for” portion of the case is really where all arguments center. Few legal malpractice cases are brought where a departure by the attorney is not glaring. The more perplexing question is what would have happened if the attorney had not made a mistake. in Karambelas v Law Off. of Mark S. Helweil 2020 NY Slip Op 30974(U) April 21, 2020 Supreme Court, New York County Docket Number: Index No. 150591/2019 Judge: Louis L. Nock we see what happens to a legal malpractice case based upon whether the wife in a divorce case would have done better in divorce or in surrogates’ court when the husband dies just before judgment in the divorce case was entered. In the earlier Karambelas case, we saw what happened with the prior attorneys during the divorce.
“This malpractice action arises out of the Firm’s representation of Ms. Karambelas duringthe latter portions of a divorce action titled Kaplan v Karambelas (No. 401958/2013 [Sup Ct NY
County]) which was ultimately abated upon the unfortunate event of Ms. Karambelas’ husband’s death. The Firm had been the fourth law firm hired by Ms. Karambelas to represent her in that divorce action. The Firm asserts on this motion that, since her husband died, Ms. Karambelas received a jointly owned Park Avenue apartment, appraised at $4.75 million in the divorce action. The Firm further asserts that Ms. Karambelas has also received $1.7 million in life insurance proceeds from her late husband’s policy.”
“The overarching gist of the motion rests on the Firm’s prediction concerning the future outcome of a pending Surrogate’s Court proceeding involving the probate of the late Mr.
Kaplan’s estate (Matter of Estate of Peter M. Kaplan, a/k/a Peter Mark Kaplan, Peter C. Kaplan, and Peter Kaplan, No. 2018-3342/B [Surr Ct NY County]). The Firm asserts that the estate
includes a residence in Water Mill, New York, appraised during the divorce action at $4.75 million, as well as jewelry and artwork valued in excess of $1 million. The Firm’s theory
underlying this motion is, in large part, distilled in paragraph 8 of the moving affirmation of its counsel, who predicts that “Karambelas will ultimately receive [through the probate of the Kaplan Estate] substantially more than she would have received in the divorce action under the equitable distribution laws of the State of New York – so she nonetheless will receive all the money he allegedly would have been obligated to pay for legal fees and maintenance anyway – and much more” (NYSCEF Doc. No. 4 ¶ 8).
In fact, the Firm’s said factual prediction permeates its entire motion (see, NYSCEF Doc. No. 4 ¶¶ 19 [“As a result of her husband’s death and the abated divorce action, Karambelas, as
his wife, will likely be left the entirety of his estate . . ., obtained full ownership of the jointly owned Park Avenue apartment and has received life insurance proceeds of $1.7 million . . . .
This would include the same money from which she allegedly would have received payment from for her legal fees and expenses.”], 27 [“it is anticipated that Karambelas will inherit significantly more money as a result of her husband’s death than she alleges as damages, and would encompass any payments allegedly not received while her husband was alive”]).
In opposition to the motion, counsel for Ms. Karambelas asserts that the Firm is overplaying Ms. Karambelas’ hand in the probate proceeding. First, he asserts that the only estate asset worth speaking of is the late Mr. Kaplan’s residence in Watermill, New York, “of which [Ms. Karambelas] would presumably have been awarded at least half in the divorce
action” (NYSCEF Doc. No. 12 ¶ 44). Said counsel further asserts, in contradistinction to the Firm’s counsel, that “[t]he estate does not include the artwork and jewelry referenced in the
attorney’s affirmation submitted in support of the motion at bar” (id., ¶ 46). Said counsel then proceeds to calculate what he believes are the debts of the Kaplan Estate, estimating them at “almost $3 million” (id., ¶ 47). Notably, said counsel further discounts the Firm’s optimistic projections of Ms. Karabelas’ probate take-away by informing the court of “the simple fact that [Mr. Kaplan’s] son is also a beneficiary and co-administrator of [Mr. Kaplan’s] estate,” concluding – or rather, counter-predicting – that Ms. Karambelas “may, at best, recover only half of her husband’s estate, to the extent that any assets remain after all of the estate’s debts have been paid” (id., ¶ 50). ”
“Based on the mutual primacy of the probate proceeding in the eyes of all the parties hereto, as manifested by their own submissions, this court concurs that the most effective
exercise of discretion at this time is to grant the Firm’s alternative request for a stay of this action pending a final resolution of the pending Surrogate’s Court proceeding. Only at that seminal point in time can the parties be able to regroup and re-assess what they currently view as the ostensible merits of their respective claims and defenses in this ancillary malpractice action and, equally importantly, whether it would be worth their whiles in doing so altogether.”