Rothman v Sandra Radna, P.C. 2023 NY Slip Op 33670(U) October 17, 2023
Supreme Court, New York County Docket Number: Index No. 152678/2023
Judge: Lynn R. Kotler is a to-the-point analysis of a legal malpractice claim and a CPLR 3211 motion to dismiss.

“

After, the amended complaint was filed in this action on May 11, 2023, an evidentiary hearing was held in the matrimonial action before Justice Joseph R. Conway regarding the Firm’s charging lien in the amount of $121,158.65. That hearing was resolved pursuant to a so ordered stipulation dated May 22, 2023, which provides as follows:
Whereas, by motion filed in January 2022, plaintiff sought to vacate a charging
lien of her prior counsel, Law Offices of Sandra M. Radna, P.C. (“LOSMRPC”} in
the amount of $121,158.65;
Whereas, by order dated 12/12/22 Justice Conway determined that an evidentiary hearing was required to adjudicate whether LOSMRPC was discharged ·
from the representation of plaintiff with cause, or unjustifiably abandoned plaintiff
or engaged in any misconduct during the representation of plaintiff;
Whereas, the evidentiary hearing commenced on 5/18/23 during which plaintiff
completed her direct examination of Sandra M. Radna, Esq. of LOSMRPC;
Whereas, a full opportunity was provided to plaintiff to continue the evidentiary
hearing on 5/22/23. On said date, plaintiff moved the court for an order to withdraw the subject motion to vacate the charging lien of LOSMRPC.
It is therefore stipulated and agreed that:

1. Plaintiff’s motion to vacate the charging lien of LOSMRPC is withdrawn
   prejudice; and,
2. Plaintiff voluntarily waives herright to a continuation of the subject
   hearing; and,
3. It is acknowledged that there is no further controversy at said hearing;
   and,
4. LOSMRPC is authorized by plaintiff to withdraw its fee at issue, in the
   amount of $121,158.65 from the monies held in its Divorce IOLA as of
   5/22/23; and,
5. LOSMRPC hereby releases plaintiff from any and an claims and/or
   actions arising from the captioned matter.
   On this motion, defendants contend that plaintiff’s complaint is barred under the doctrine of collateral estoppel and fails to state a viable cause of action for legal malpractice in any event. Plaintiff opposes the motion, arguing that collateral estoppel does not apply and that defendants failed to introduce expert testimony after note of issue was filed, thereby costing plaintiff “a minimum of $825,000.00
   in lost valuation of the stock in the corporate business.” Plaintiff further contends that the defendants failed to produce a physicians affidavits concerning plaintiff’s injuries, that defendants. “never requested” that the referee invoke Bhckstern (99 AD2d 287 [2 Dept 1984]), which held that “‘marital fault’ can be considered in determining equitable distribution in extraordinary cases … ” and that defendants failed to provide the Referee with proof of the value of the assets and inventory of the marital business. On reply, defendants dispute plaintiff’s substantive claims about what happened in the underlying matrimonial action.”

“The court disagrees with defendants that the 5/22/23 Stipulation collaterally estops plaintiff from suing defendants for legal malpractice. Said stipulation provided that plaintiff waived continuation of a hearing to determine if the Firm was discharged from the representation of plaintiff with cause, or unjustifiably abandoned plaintiff or engaged in any misconduct during the representation of plaintiff, and plaintiff represented that there was no further controversy on those issues. Contrary to defendants’ contention, the issues in the hearing are not identical to plaintiff’s claims herein, which have morphed from what is claimed in the amended complaint to the arguments asserted in plaintiff’s memorandum of law in opposition to the motion. Thus, defendants’ collateral estoppel argument is rejected.”