On its face, Allen v Thompson 2025 NY Slip Op 31783(U) May 15, 2025 Supreme Court, New York County Docket Number: Index No. 160342/2020 Judge: Sabrina Kraus would seem to be a situation where a general practitioner takes on a complex employment discrimination case and then changes a word in the settlement papers in (what is later determined to be) an inappropriate way. The attorney sets it up so that the client, not he, made the change. The secondary lesson is that summary judgment in legal malpractice cases requires expert testimony.

“On or about February 28, 2012, Plaintiff was terminated from Chanel, Inc. after nineteen (19) years of employment. Plaintiff was offered a severance package of $21,789.20 and five (5) months of paid COBRA. Plaintiff was not satisfied with this arrangement and believed that her employment was terminated on the basis of discrimination. Plaintiff decided to consult an attorney, but was unable to pay for one, so she approached
Defendant, an attorney with whom she was acquainted through a mutual friend, about negotiating a Separation and Release Agreement.”

“Defendant agreed to negotiate on Plaintiff’s behalf, and though the parties did not discuss payment for said negotiations. it was agreed that when Plaintiff sued for discrimination, Defendant would file the case and get a contingency percentage if successful. When Defendant received the proposed agreement from Chanel, he advised Plaintiff he had changed one word, “including” to “excluding,” and told her to initial each page of the
agreement, indicate the change with a post-it note, and then forward the signed agreement to the legal department of the Company. This one change to the agreement made by Defendant, excluded from the release any right arising under Title VII, the New York State Human Rights Law and the New York City Human Rights Law, thereby allowing Plaintiff to still file a lawsuit under these statutes.”

“On or about December 3, 2012, Defendant provided Plaintiff with an affidavit that he had prepared and instructed Plaintiff to sign. The affidavit stated that Plaintiff, herself, was personally responsible for modifying the agreement and not Defendant. Plaintiff questioned Defendant as to why the affidavit was worded that way and was told by Defendant that legally this is the way that it had to be done. Plaintiff asserts that Defendant pressured her into signing signed the affidavit.”

“Plaintiff expressed the importance of having this Discrimination Suit sealed upon completion, as it would harm Plaintiff’s job and career opportunities. Plaintiff was continuously assured by Defendant that he would make sure it was sealed and there was nothing to worry about. Negotiations regarding the settlement agreement continued and on or about April 16, 2017, Defendant sent Plaintiff a new settlement agreement and general release from Chanel, Inc. that contained a new confidentiality provision stating that if Plaintiff or any other person acting as her agent ever discusses the claims or the settlement agreement, Plaintiff would be required to pay Chanel $10,000.00 for each and every breach of the confidentiality provision plus any attorney’s fees. Plaintiff requested numerous times that this provision be taken out of the agreement, but Defendant refused to negotiate with Chanel and stated that he wanted the case to be over with.

““On its motion for summary judgment, Plaintiffs had the burden of establishing, by proof in admissible form, its prima facie entitlement to judgment as a matter of law (see CPLR 3212[b]; Zuckerman v. City of New York, 49 N.Y.2d 557, 561, 427 N.Y.S.2d 595, 404 N.E.2d 718).” Englington Med., P.C. v. Motor Vehicle Acc. Indem. Corp., 81 A.D.3d 223, 229 (2011). Where the only direct evidence available centers around what the parties allegedly said or did, an assessment of party credibility is required which, at summary judgment is necessarily resolved in favor of the nonmovant. Harty v. Kornish Distributors, Inc., 119 A.D.2d 729 (2d Dept. 1986).”

“Defendant failed to meet his initial burden of presenting evidence in admissible form establishing that he exercised the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession in discharging his obligations to plaintiff (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Geraci v Munnelly, 85 AD3d 1361, 1362 [2011]; Adamski v Lama, 56 AD3d 1071, 1072 [2008]). The issue of the adequacy of the professional services provided requires a professional or expert opinion to define the standard of professional care and skill owed to plaintiff and to establish whether the attorney’s conduct complied with that standard (see Tabner v Drake, 9 AD3d 606, 610 [2004]; Ehlinger v Ruberti, Girvin & Ferlazzo, 304 AD2d 925, 926 [2003]; Greene v Payne, Wood & Littlejohn, 197 AD2d 664, 666 [1993]). As to the breach of contract claim, there are disputed issues of fact about what the parties did and did not agree to in terms of whether Defendant had agreed to have the case sealed.”