Bachman-Richards v Pomeroy 2023 NY Slip Op 05431 Decided on October 26, 2023 Appellate Division, Third Department is the kind of case that defendants like to point out when they argue that clients cannot be trusted. The Court found that plaintiff consulted with an attorney in reaching a separation agreement from her husband. Later she alleged that she had been unrepresented while negotiating the agreement. After several further twists a legal malpractice case against her subsequent attorney was dismissed on summary judgment and affirmed in the Appellate Division.

“Plaintiff was formerly married to Benjamin Richards, with whom she had three children. In 2010, plaintiff consulted with attorney Jonathan Orkin about separating from Richards. Plaintiff then entered into negotiations with Richards and his attorney. During these negotiations, plaintiff relayed Richards’ settlement offers to Orkin, who repeatedly and strongly advised her that the offers were unreasonable and that she should not accept them. Nevertheless, plaintiff proceeded to sign Richards’ proposed settlement agreement, telling Orkin that she had her own reasons for doing so, including her wishes to move forward quickly, avoid protracted litigation and purchase her own home. Within several months of signing the agreement, however, plaintiff admitted to Orkin that she had made a “major error” in agreeing to Richards’ terms and apologized to Orkin for not following his advice.

In 2011, Richards commenced a divorce action against plaintiff on the ground of living separate and apart for one year pursuant to the separation agreement. Plaintiff retained defendant William J. Pomeroy to represent her in the divorce action, seeking his assistance in having the separation agreement vacated. On plaintiff’s behalf, Pomeroy filed a verified answer with counterclaims, alleging, among other things, that plaintiff had not been represented by counsel at the time she signed the separation agreement and that the terms in the agreement pertaining to equitable distribution, maintenance and child support were unconscionable. Richards then moved for summary judgment on this counterclaim, asserting that plaintiff had, in fact, consulted with Orkin and had signed the agreement against Orkin’s advice and, further, that the agreement was not unconscionable. Supreme Court (Mulvey, J.) partially granted the motion, and the parties proceeded to engage in further settlement negotiations. Richards made an offer to plaintiff that included increased maintenance and a higher cash payment. After consulting with Pomeroy, plaintiff accepted this offer and signed a modified separation agreement. Shortly thereafter, a judgment of divorce, incorporating the modified agreement, was entered.

In 2015, plaintiff commenced this legal malpractice action against Pomeroy and his law firm, defendant Pomeroy, Armstrong, Casullo & Monty, LLP, alleging negligent representation in the divorce action. More specifically, plaintiff claimed that Pomeroy failed to fully investigate the value of a number of shares of stock owned by Richards, abandoned the agreed-upon course of seeking vacatur of the separation agreement on the ground of unconscionability, and instead rushed her to settle, thereby forfeiting her right to equitable distribution of the shares. Following joinder of issue, defendants moved for [*2]summary judgment, and Supreme Court (McBride, J.) denied the motion, after which defendants moved to reargue. Supreme Court (Burns, J.) then granted reargument and awarded summary judgment to defendants. Plaintiff appeals from both aspects of that decision, and we affirm.”

“Through the submission of this expert affidavit, defendants established prima facie entitlement to judgment as a matter of law (see Kivo v Louis F. Burke, P.C., 187 AD3d 503, 503 [1st Dept 2020]; Nuzum v Field, 106 AD3d 541, 541 [1st Dept 2013]). As such, the burden shifted to plaintiff, who was required to provide her own expert affidavit to counter that of Julian, which she failed to do (see Kivo v Louis F. Burke, P.C., 187 AD3d at 503-504; Murray v Lipman, 162 AD3d 1659, 1659 [4th Dept 2018]; Nuzum v Field, 106 AD3d at 541; Tran Han Ho v Brackley, 69 AD3d 533, 534 [1st Dept 2010], lv denied 15 NY3d 707 [2010]; Ehlinger v Ruberti, Girvin & Ferlazzo, 304 AD2d 925, 926 [3d Dept 2003]). Reargument was therefore properly granted because Supreme Court (McBride, J.) misapplied the controlling law in finding that plaintiff, without an expert affidavit, had sufficiently raised a question of fact (see Davis v Zeh, 200 AD3d 1275, 1280 [3d Dept 2021]; Cascade Bldrs. Corp. v Rugar, 154 AD3d 1152, 1154 [3d Dept 2017]). Further, upon such reargument, summary judgment was appropriately awarded to defendants due to plaintiff’s failure to raise the requisite triable issue of fact (see Kivo v Louis F. Burke, P.C., 187 AD3d at 503-504; Murray v Lipman, 162 AD3d at 1659; Nuzum v Field, 106 AD3d at 541).”