Kasmin v Josephs 2023 NY Slip Op 32468(U) July 19, 2023 Supreme Court, New York County Docket Number: Index No. 152213/2020 Judge: Nancy M. Bannon is yet another case in the Katebi v. Fink line of cases which hold that when the client allocates to a matrimonial settlement in open court, and answers the question “are you satisfied with your attorneys services” in the positive, a legal malpractice case thereafter is doomed.

“The third cause of action, for legal malpractice, must also be dismissed. A claim for legal malpractice requires proof that defendant failed to exercise the degree of care, skill, and diligence commonly possessed and exercised by an ordinary member of the legal community; that such negligence was the proximate cause of the actual damages sustained by plaintiff; and that, but for defendant’s negligence, plaintiff would have been successful in the underlying action. Cummings v Donovan, 36 AD3d 648 (2d Dept. 2007).
Plaintiff outlines a litany of defendant’s alleged acts and omissions that she contends fell far below the level of skill and knowledge reasonably expected from an ordinary member of the legal community. Plaintiff claims, in essence, that defendant engaged in frivolous motion practice and delay tactics to generate sizable legal fees; improperly retained third parties to perform unnecessary and harmful services; failed to secure continued spousal maintenance payments to her from Paul Kasmin’ s estate; failed to advise plaintiff to obtain an appropriate financial instrument to protect her right to spousal maintenance; failed to protect plaintiffs assets from depletion by legal fees incurred in the matrimonial action; and improperly waived plaintiffs right to recover certain fees. Plaintiff asserts that, but for these alleged acts and omissions, she would have recovered more from Mr. Kasmin than she did in the underlying matrimonial action.

To be sure, a legal malpractice claim is viable, despite settlement of the underlying
action, if it is alleged that the settlement of the action was effectively compelled by the mistakes of counsel. Bernstein v Oppenheim & Co., 160 AD2d 428,430 (1st Dept. 1990). Here, however, the evidence demonstrates that plaintiff knowingly and voluntarily settled the matrimonial action after lengthy negotiations. In particular, during her allocution in connection with the 2014 Settlement, which resolved the underlying litigation with respect to spousal maintenance, plaintiff acknowledged that “the terms of the stipulation had been discussed and negotiated over a period of time”; she understood the terms of the settlement in their entirety; she believed the settlement was “fair and reasonable”; and she was satisfied with the services of her attorney. This evidence clearly contradicts plaintiffs claim. See Katebi v Fink, 51 AD3d 424, 425 (1st Dept. 2008) (affirming dismissal of legal malpractice claim based on plaintiffs allocution testimony that she knowingly and willingly entered into the settlement of the underlying matrimonial action and was satisfied with her attorney’s services).”