Rothman v Sandra Radna, P.C. 2024 NY Slip Op 02102 Decided on April 18, 2024
Appellate Division, First Department demonstrates that there are many procedural traps which can doom a later legal malpractice claim. In this setting, a stipulation collaterally estopped Plaintiff from suing the attorneys later.

“Plaintiff previously litigated whether defendants were entitled to a fee in her matrimonial action. As one basis for her motion to vacate defendants’ charging lien, plaintiff asserted that the failure of defendants to present expert evidence regarding domestic abuse and the valuation of the family’s closely held company constituted malpractice. An evidentiary hearing was directed on the motion, during which plaintiff agreed by stipulation to withdraw her motion to vacate the charging lien with prejudice and to authorize the fee at issue to be withdrawn from counsel’s Divorce IOLA account. However, in her amended complaint in this action, plaintiff reasserted that same claim for malpractice. Where a client has challenged and lost on the issue of whether counsel is entitled to a fee, that determination collaterally estops a subsequent claim for legal malpractice (Koppelman v Liddle, O’Connor, Finkelstein & Robinson, 246 AD2d 365, 366 [1st Dept 1998]). That the matter was resolved by stipulation does not make a difference. It is generally presumed that a withdrawal made “with prejudice” has preclusive effect (see North Shore-Long Is. Jewish Health Sys., Inc. v Aetna US Healthcare, Inc., 27 AD3d 439, 440 [2d Dept 2006]).”