It is a bedrock principle of litigation that the vast majority of cases have to settle if they are to be resolved in any fashion.  Courts are not able to try all cases.  If settlements were not the norm, then litigants would routinely go broke trying to finalize cases which sat for years and years awaiting an open lot for trial. (see: Dickens)  Because of that reality, courts (especially matrimonial courts) lean on the litigants to settle.

Givens v De Moya
2021 NY Slip Op 02136  Appellate Division, Second Department is an example of a spouse trying to undo a matrimonial settlement to no avail.  The standard is that a legal malpractice case is viable despite settlement if the settlement was effectively compelled.

“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” (Glenwayne Dev. Corp. v James J. Corbett, [*2]P.C., 175 AD3d 473, 473-474 [internal quotation marks omitted]; see Katsoris v Bodnar & Milone, LLP, 186 AD3d 1504, 1505; Betz v Blatt, 160 AD3d 696, 697). “‘A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel'” (Katsoris v Bodnar & Milone, LLP, 186 AD3d at 1505, quoting Bernstein v Oppenheim & Co., 160 AD2d 428, 430; see Gad v Sherman, 160 AD3d 622, 623). Nevertheless, “‘[t]he fact that the plaintiff subsequently was unhappy with the settlement [he or she] obtained . . . does not rise to the level of legal malpractice'” (Katsoris v Bodnar & Milone, LLP, 186 AD3d at 1505, quoting Holschauer v Fisher, 5 AD3d 553, 554). “A defendant seeking summary judgment dismissing a legal malpractice cause of action has the burden of establishing prima facie that he or she did not fail to exercise such skill and knowledge, or that the claimed departure did not proximately cause the plaintiff to sustain damages” (Bakcheva v Law Offs. of Stein & Assoc., 169 AD3d 624, 625; see Iannucci v Kucker & Bruh, LLP, 161 AD3d 959, 960; Betz v Blatt, 160 AD3d 696, 698).

Here, the defendant met her prima facie burden of establishing her entitlement to judgment as a matter of law dismissing the plaintiff’s remaining claims. The defendant’s submissions demonstrated that, in representing the plaintiff in the divorce action, she exercised the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the stipulations of settlement entered into by the plaintiff in open court in the underlying action were not the product of any mistakes by the defendant (see Holtzman v Griffith, 162 AD3d 874, 876; Schiff v Sallah Law Firm, P.C., 128 AD3d 668, 669). In addition, with respect to the in-court stipulation of settlement of the combined equitable distribution and maintenance award, the transcript of the plaintiff’s allocution in the divorce action demonstrated that he understood the stipulation settling the combined equitable distribution and maintenance award and that it would be final, that he had discussed it with the defendant and was satisfied with her representation, that no one had made him promises or coerced him to enter into the settlement, and that he was not under the influence of any substance which would affect his ability to understand the significance of the settlement (see Holtzman v Griffith, 162 AD3d at 876; Schiff v Sallah Law Firm, P.C., 128 AD3d at 669; see also Chamberlain, D’Amanda, Oppenheimer & Greenfield, LLP v Wilson, 136 AD3d 1326, 1328).

In opposition, the plaintiff failed to raise a triable issue of fact (see Holtzman v Griffith, 162 AD3d at 876). The plaintiff submitted no evidence to demonstrate a triable issue of fact as to whether he did not agree to the settlements, whether the settlements were not supported by the financial information or evidence before the divorce court, or whether he agreed to those settlements as a result any alleged mistake on the part of the defendant.”

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Andrew Lavoott Bluestone

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened…

Andrew Lavoott Bluestone has been an attorney for 40 years, with a career that spans criminal prosecution, civil litigation and appellate litigation. Mr. Bluestone became an Assistant District Attorney in Kings County in 1978, entered private practice in 1984 and in 1989 opened his private law office and took his first legal malpractice case.

Since 1989, Bluestone has become a leader in the New York Plaintiff’s Legal Malpractice bar, handling a wide array of plaintiff’s legal malpractice cases arising from catastrophic personal injury, contracts, patents, commercial litigation, securities, matrimonial and custody issues, medical malpractice, insurance, product liability, real estate, landlord-tenant, foreclosures and has defended attorneys in a limited number of legal malpractice cases.

Bluestone also took an academic role in field, publishing the New York Attorney Malpractice Report from 2002-2004.  He started the “New York Attorney Malpractice Blog” in 2004, where he has published more than 4500 entries.

Mr. Bluestone has written 38 scholarly peer-reviewed articles concerning legal malpractice, many in the Outside Counsel column of the New York Law Journal. He has appeared as an Expert witness in multiple legal malpractice litigations.

Mr. Bluestone is an adjunct professor of law at St. John’s University College of Law, teaching Legal Malpractice.  Mr. Bluestone has argued legal malpractice cases in the Second Circuit, in the New York State Court of Appeals, each of the four New York Appellate Divisions, in all four of  the U.S. District Courts of New York and in Supreme Courts all over the state.  He has also been admitted pro haec vice in the states of Connecticut, New Jersey and Florida and was formally admitted to the US District Court of Connecticut and to its Bankruptcy Court all for legal malpractice matters. He has been retained by U.S. Trustees in legal malpractice cases from Bankruptcy Courts, and has represented municipalities, insurance companies, hedge funds, communications companies and international manufacturing firms. Mr. Bluestone regularly lectures in CLEs on legal malpractice.

Based upon his professional experience Bluestone was named a Diplomate and was Board Certified by the American Board of Professional Liability Attorneys in 2008 in Legal Malpractice. He remains Board Certified.  He was admitted to The Best Lawyers in America from 2012-2019.  He has been featured in Who’s Who in Law since 1993.

In the last years, Mr. Bluestone has been featured for two particularly noteworthy legal malpractice cases.  The first was a settlement of an $11.9 million dollar default legal malpractice case of Yeo v. Kasowitz, Benson, Torres & Friedman which was reported in the NYLJ on August 15, 2016. Most recently, Mr. Bluestone obtained a rare plaintiff’s verdict in a legal malpractice case on behalf of the City of White Plains v. Joseph Maria, reported in the NYLJ on February 14, 2017. It was the sole legal malpractice jury verdict in the State of New York for 2017.

Bluestone has been at the forefront of the development of legal malpractice principles and has contributed case law decisions, writing and lecturing which have been recognized by his peers.  He is regularly mentioned in academic writing, and his past cases are often cited in current legal malpractice decisions. He is recognized for his ample writings on Judiciary Law § 487, a 850 year old statute deriving from England which relates to attorney deceit.