Casey v Exum 2023 NY Slip Op 04106 Decided on August 2, 2023 Appellate Division, Second Department illustrates the difficult standard in matrimonial legal malpractice cases where the underlying matrimonial was settled. Without relying on the Katebii line of settlement case law, summary judgment was nevertheless granted because it was practically impossible to prove that there would have been a better outcome at trial v. settlement.

“In November 2015, the plaintiff commenced this action against the defendant, her former attorney, to recover damages for legal malpractice and breach of contract arising out of the defendant’s representation of her in a matrimonial action against her former spouse. The plaintiff alleged, inter alia, that, due to the defendant’s malpractice, she agreed to a settlement of the matrimonial action less favorable than that she would have received as a marital distribution after a trial. The defendant moved for summary judgment dismissing the complaint. In an order dated June 2, 2020, the Supreme Court granted the defendant’s motion. The plaintiff appeals. We affirm, albeit on a ground different than that relied upon by the court (see Green v Conciatori, 26 AD3d 410, 410).”

“Here, the defendant established, prima facie, that he was not a proximate cause of the plaintiff’s alleged damages (see Richmond Holdings, LLC v David S. Frankel, P.C., 150 AD3d 1168, 1168; Montero v Cohen, 104 AD3d 654, 655). In opposition, the plaintiff failed to raise a triable issue of fact. The plaintiff’s claims that the defendant could have negotiated a more favorable settlement, that her former spouse would have accepted a settlement offer that was more favorable to her, or that she would have received a more favorable outcome at trial had she declined to enter into the settlement are conclusory and speculative (see Katsoris v Bodnar & Milone, LLP, 186 AD3d 1504, 1506; Janker v Silver, Forrester & Lesser, P.C., 135 AD3d 908, 910).”