Roedelbronn v Borstein & Sheinbaum LLC 2022 NY Slip Op 31434(U) May 3, 2022 Supreme Court, New York County Docket Number: Index No. 158045/2020 Judge: William Perry is a rare divorce legal malpractice case that has actionable facts which give rise to provable damages. (Example: a miscalculation by the Referee of $ 417,000 in plaintiff’s favor, not challenged by the attorneys). However, the Court finds it too late and after the statute of limitations has passed.
“Atrial was held before Special Referee Joseph Burke from June 23 to July 16, 2015. On October 13, 2016, Referee Burke issued a report recommending that Cotton pay Plaintiff
$20,000.00 in maintenance per month and that Plaintiff be allocated “10% of the marital property portion of the Agrifos business assets”. (NYSCEF Doc No. 16, Burke Report, at 3-4, 7.) The Hon. Deborah Kaplan adopted the recommendations and issued a judgment of divorce on October 20, 2017. (NYSCEF Doc No. 21, Judgment of Divorce, affd 170 AD3d 595 [1st Dept 2019].)
Plaintiff commenced this action on September 30, 2020, and filed the amended complaint on December 10, 2020, alleging that she was awarded a smaller share of the marital assets and alimony than she was entitled to receive. (NYSCEF Doc No. 8, Am. Cmplt, at ,i 15.) Specifically, Plaintiff alleges that Defendants were negligent in that they:
a. failed to properly prepare for the trial;
b. obtain the services of and use a forensic accountant to testify at the trial even
though funds were provided to obtain one;
c. failed to provide or obtain any witnesses during the trial before the Special
Referee;
d. failed to provide Exhibits at the Hearing before the Special Referee to respond
to Cotton’s 240 Exhibits and five witnesses other than Plaintiff; ·
e. failed to properly advise plaintiff as to what was needed for the hearing, properly
prepare her for trial or advise her when she was unable to attend on a daily bases
because of severe illness;
f. failed to take all actions necessary to obtain an adjournment in light of
PLAINTIFF’S documented severe illness;
g. failed to properly advise plaintiff;
h. failed to properly confirm the calculations of the Special Referee which appears
to have omitted over $417,991.30 in favor of Plaintiff;
i. failed to properly advise PLAINTIFF with regard to Domestic relations Law 236
and in in general, and
g. failed to properly represent Plaintiff after the hearing and prior to the filing of a
Notice of Appeal.”
“Here, Plaintiffs allegations of malpractice pertain almost entirely1 to the Defendants’ actions or inactions taken during the trial which was held from June 23 to July 16, 2015. (Am.
Cmplt. at 118.) The statute of limitations for legal malpractice arising from the trial expired on July 16, 2018. (CPLR 214[6].) Plaintiffs attempted reliance on the continuous representation doctrine is unavailing (NYSCEF Doc No. 32, Opposition, at 4-5; NYSCEF Doc No. 27, Pl.’s Affidavit), as Plaintiff fails to demonstrate the existence of “clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney which often includes an attempt by the attorney to rectify an alleged act of malpractice.” (Stein Indus., Inc. v Certilman Balin Adler & Hyman, LLP, 149 AD3d 788, 789 [2d Dept 2017].) To the contrary, Plaintiff’s affidavit reaffirms that the alleged malpractice took place solely during the 2015 trial, as Plaintiff fails to note any further relationship between her and Defendants after the trial’s conclusion. (NYSCEF Doc No. 27, Pl.’s Affidavit, at 1, 21-23.) As such, Defendants’ motion to dismiss pursuant to CPLR 3 211 [ a J[ 5] is granted, and all allegations of Defendants’ legal malpractice committed during the 2015 trial are barred by the statute of limitations.”