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.”