A line of legal malpractice cases in New York, arising primarilly out of matrimonial underlying matters have found that if the client positively answers an allocution question of whether the client is satisfied with the attorneys’work, then a later legal malpractice case is forfeit. Here in Stennett v Goldberg & Cohn, LLP 2020 NY Slip Op 33901(U) November 23, 2020 Supreme Court, Kings County Docket Number: 511918/2018 Judge: Pamela L. Fisher highlihghts the history of this doctrine.
“The court declines to dismiss plaintiffs cause of action for legal malpractice pursuant to CPLR § 321 l(a)(l), on the basis of plaintiffs llocution under oath, because New York State courts have not taken a consistent position on whether an allocution that a client was satisfied with the services of his/her attorney precludes a client from bringing a claim for legal malpractice (See Boone v. Bender, 74 A.D.3d 1111, 1113 [2d. Dept. 2010] (granting defendants’ motion for summary judgment on the grounds that the “open-court stipulation of settlement established
that the plaintiff was satisfied with the defendants’ representation of her”); Harvey v. Greenberg, 2009 NY Slip Op. 32625(U) [Sup Ct, NY County 2009] (granting motion to dismiss); ajf’d 82 A.D.3d 683, 683 [1st Dept. 2011]; Katebi v. Fink, 51A.D.3d424, 425 [l st Dept. 2008] (granting motion to dismiss); But see Cruciata v. Mainiero, 31 A.D.3d 306, 306 [1st Dept. 2006] (reversing dismissal under CPLR § 321 l(a)(l) “[d]espite the detailed on-the-record settlement of plaintiffs matrimonial action,” on the
grounds that “the former husband’s pension and other assets were overlooked in arriving at the stipulation”); Gad v. Sherman, 160 A.D.3d 622, 623 [2d. Dept. 2018] (affirming trial’s court’s order denying dismissal of complaint pursuant to CPLR § 321 l(a)(l) on the grounds that “the documentary evidence submitted by the defendant, consisting of the transcript of the April 2014 court appearance, failed to utterly refute the plaintiff’s allegations of malpractice”)). “