There are four elements to legal malpractice. In shorthand, they are departure, proximity, “but for” causation and ascertainable damages. Karambelas v Cohen Goldstein, LLP 2020 NY Slip Op 30994(U) April 2, 2020 Supreme Court, New York County Docket Number: Index No. 15163 demonstrates how the Court will examine the underlying case (sometimes to an extreme degree) in order to determine the “but for” issue. Anecdotally, this is much more extreme in legal malpractice settings than in general litigation.
“On April 17, 2015 – not yet having received its retainer payment from plaintiff, the Firm appeared in court on her behalf At that appearance, the court rendered a decision on a pending motion by plaintiff, made by prior counsel, which sought to compel plaintiffs husband to produce all life insurance policies at the time he brought the divorce action (see, Defendants’ Exh. “V” [transcript of April 17, 2015, appearance]). The court granted that motion and ordered plaintiffs husband to turn over the life insurance policies within 15 days. Plaintiffs
husband did not comply with this order (id). Contrary to a claim made by plaintiff herein that the Firm failed to properly conduct discovery, the court had advised that discovery had closed the day before the Firm even made its first appearance (id). The court, therefore, denied the Firm’s request to continue the deposition of plaintiffs husband, but allowed certain other discovery to take place (id). ”
“Despite the court’s closing of discovery; on June 15, 2015, the Firm, nevertheless, filed a motion by Order to Show Cause, seeking an order: (i) granting interim attorneys’ fees of
$150,000.00, as well as the costs of that motion; (ii) holding plaintiffs husband in contempt for failing to pay monthly maintenance and to turn over the life insurance policies; (iii) granting a judgment for the amount of maintenance in arrears at that time, as well as any amounts that would become due pending the motion; (iv) directing the art auction house Christie’s to release to plaintiff the amounts it was holding as a credit against plaintiffs husband’s support obligations; (v) compelling plaintiffs husband to post security of $250,000.00 or to appoint a receiver to rent out a house owned by plaintiff and her husband, with the rent to be used to pay plaintiffs support; and (vi) compelling plaintiffs husband to tum over additional documents (see, Defendants’ Exh. “J” [June 15, 2015, Motion]). On November 20, 2015, the court denied the request for $150,000.00 in light of plaintiffs receipt of a $500,000.00 line of credit, but did award plaintiff $20,000.00 in connection with the costs of that motion (see, Defendants’ Exh. “K” [November 20, 2015, Order]). The court directed a contempt hearing be held regarding the nonpayment of support and the failure to disclose all life insurance policies (id). The court also found that plaintiffs husband’s arrears were $75,975.83 and directed the entry of a money judgment if payment was not made (id). The court further denied plaintiff’s request for security or a receiver, and the request relating to Christie’s was resolved by a stipulation between the parties (id). ”
“Plaintiff asserts five causes of action against the defendants. However, all of these claims are conclusively refuted by documentary evidence and must be dismissed pursuant to CPLR
321 l(a)(l). A motion to dismiss based on documentary evidence may be granted “where the documentary evidence utterly refutes plaintiff’s factual allegations, conclusively establishing a defense as a matter oflaw” (Goshen v Mutual Life Ins. Co., 98 NY2d 314, 326 ). Here, the documentary evidence, in the nature of court filings, court orders, and correspondence between the parties, demonstrates that the factual allegations that form the basis of plaintiff’s claims are disproven. As such, the complaint should be dismissed in its entirety. “