Cruciata v Mainiero ;2011 NY Slip Op 50066(U) ;Decided on January 14, 2011 ;Supreme Court, New York County ;James, J.  is a very interesting example of the premise that if you keep showing up and keep at it, a better result may very well follow.  In this case, a matrimonial action, plaintiff was awarded a divorce and some equitable distribution after a settlement.  She perservered and won reversal of the stipulation in the AD.  She went back and basically doubled her equitable distribution.
In the meanwhile, her legal malpractice case was dismissed, and again, she went to the AD, who, again, reversed Supreme Court.  Now, she perserveres through a motion for summary judgment.

"In his motion, Mainiero argues that Cruciata cannot establish that, "but for" his purported malpractice, "she would have obtained a better result."[FN1] Mainiero specifically argues first, that Cruciata cannot establish that his actions cost her the right to have a trial, since Cruciata herself chose to settle her divorce action rather than go to trial on both occasions when she was offered a choice. Mainiero also argues that Cruciata cannot establish that his actions adversely affected her right to custody of her children, because she chose not to litigate that issue after the Appellate Division, Second Department, vacated the original stipulation of settlement in her divorce action. Mainiero also argues that Cruciata cannot establish that his actions adversely affected her right to an equitable distribution of her marital property, since it was established that her ex-husband had not hidden any assets, and that the increase in her equitable distribution award was intended solely to compensate her for the large amount of legal fees she had spent in seeking those non-existent assets.

In her cross motion, Cruciata concedes both that she did have the right to a trial in her divorce action, but chose to forego it, and that she also chose not to litigate the issue of custody. However, Cruciata disputes Mainiero’s contentions regarding equitable distribution, and specifically argues that, during the second settlement of her divorce action, she and her ex-husband treated the issues of equitable distribution and of compensating her for legal expenditures separately. Cruciata also claims that Mainiero, and not her ex-husband, is the party who should reimburse her for the legal fees that she incurred in re-opening and re-settling her divorce action. Mainiero’s reply papers restate his original arguments, but do not address [*5]Cruciata’s contention that he is the party liable to her for legal fees in her divorce action.

The court finds that, under the facts of this case, Mainiero is correct that Cruciata may not base a legal malpractice claim against her on the grounds that his actions adversely affected her rights to a trial and/or custody of her children in her divorce action. Cruciata has expressly admitted that she herself decided to settle that action and not to seek custody of her children. There is no conclusive evidence regarding the issue of equitable distribution, however. The only certain fact is that Cruciata was awarded a payment of $220,000.00 pursuant to her first divorce settlement, and a larger payment of $420,000.00 in the second settlement. The court’s function, on a motion for summary judgment, is one of issue identification, not issue determination. See e.g. Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 (1957); Grullon v City of New York, 297 AD2d 261 (1st Dept 2002). Here, the court finds that Cruciata’s and Mainiero’s competing explanations for the increase in the settlement present an unresolved issue of fact. Therefore the court is unable to award summary judgment either granting or dismissing Cruciata’s legal malpractice claim to the extent it is based upon the amount of the settlement. Accordingly, the court finds that both parties’ motions should be denied with respect to this claim.

Cruciata’s second cause of action alleges excessive legal fees. Mainiero’s original moving papers do not mention this cause of action other than to deny that the fees that he charged Cruciata were excessive. In her cross motion, Cruciata states that her "excessive legal fees" claim is presented as "an alternate theory of recovery" of the damages that she seeks pursuant to her third cause of action. Cruciata specifically argues that, because an attorney who is terminated for cause by a client has no right to collect legal fees, any fees that Mainiero charged her are, perforce excessive. In his reply/opposition papers, Mainiero argues that Cruciata has failed to present evidence of either: 1) the actual amount of legal fees that he charged; 2) that those fees were excessive; or 3) that he was discharged for cause. The court agrees. Cruciata simply presents no evidence to support her second cause of action beyond her own conclusory, self-serving statements that Mainiero’s fees were excessive, and that she discharged him for cause. It is well settled that conclusory assertions which are unsupported by evidence are insufficient to oppose a motion for summary judgment. See e.g. Mason v Dupont Direct Fin. Holdings, 302 AD2d 260 (1st Dept 2003). Accordingly, the court finds that Maniero’s motion should be granted, and Cruciata’s cross motion should be denied, with respect to Cruciata’s "excessive legal fees" claim. [*6]