Plaintiff retained defendant to represent him in a matrimonial action.  In the end, he was just too poor to get divorced.  The divorce action ended in a settlement, and the marriage remained intact.  Now, plaintiff husband sues attorney, and is defeated by documentary evidence that completely contradicts plaintiff’s position and is successful on motion to dismiss.

Faath v Roth ;2011 NY Slip Op 33366(U); December 12, 2011 ;Supreme Court, Nassau County
Docket Number: 003912/11; Judge: Joel K. Asarch.

"The plaintiff in this action seeks to recover damages for legal malpractice. As and for his first cause of action, he alleges that he retained the defendant to represent him "in connection with
a matrimonial matter" and that the defendant "failed to properly represent (him)." He alleges that
as a result of the defendant’s malpractice , he "is still married" and that he "was pressured by the
defendant into executing an agreement with his wife which the defendant failed to explain to him
and which is of doubtful enforceability. " He seeks damages in the minimum amount of $1 00 000.
As and for his second cause of action, he alleges that the defendant’s charges were excessive and that he billed for work not performed. He seeks damages of a minimum of $40 000.

The only damages alleged by the plaintiff is that he is "still married." To baldly equate remaining married" with damages is inappropriate and unacceptable. The plaintiff s failure to plead actual ascertainable damages which were proximately caused by the alleged malpractice requires dismissal of a legal malpractice claim under CPLR 3211 (a)(7). Wald v Berwitz 62 AD3d 786 (2
Dept 2009), citing Rudolf v Shayne. Dachs. Stanisci. Corker & Sauer, 8 NY3d 438 442 (2007);
Cummings v Donovan, 36 AD3d 648 (2 Dept 2007).

In any event, the defendant lawyer cannot be faulted for the plaintiff s continued marred status. The Settlement Agreement which was signed by the plaintiff precludes such a finding. It provides:
Each party has had a full opportunity and has consulted at length with his or her attorney regarding all of the circumstances hereof and acknowledge that this Agreement has not been the result of any fraud, duress or undue influence exercised by either party upon the other or by any other person or persons upon the other.  More importantly, the plaintiff signed a detailed letter by counsel dated June 19 2008 which provides that the terms of the Separation Agreement were negotiated by him and he has required  that  they be included in it; that he realized he will continue to be married; that it is his desire that the divorce action be discontinued so that he could live under the terms of the Agreement; and that he had advised counsel that "it is not economically feasible for (him) to be divorced. " It further notes that the Separation Agreement is very risky as it relies too much on the parties ‘ good faith; that it may not be enforced in court; and, that it is a product of his and his wife s negotiations with little legal input. In sum, the letter by the defendant attorney states:

I have attempted to do my best within the parameters and guidelines you have set. However, you have precluded me from attempting to fully protect you under the terms of this agreement. I have done all possible within those guidelines and parameters. You have limited the amount of negotiation and you are satisfied with the terms of the agreement as they are presently written.
I have given you every opportunity to review this agreement in detail and to ask any questions you desire. You have had the opportunity to review this agreement and ask the questions and had sufficient time to digest the terms of this agreement, it is my understanding from speaking to you, that you have fully read the agreement.  If you have any questions, now is the time to ask prior to executing this agreement, which will be binding upon you and your spouse.  The plaintiff acknowledged as follows: I have read the separation agreement and I am familiar with the terms. I am executing same voluntarily and under no duress and over the advice of my  counsel as set forth in this letter. In a follow-up letter by the defendant lawyer dated December 8, 2008 which was again
signed by the plaintiff, counsel cautions that contract law, not the Domestic Relations Law, would
apply to the agreement and warned that there was no telling what a court would do if called upon to
enforce some of the provisions. In sum, the defendant lawyer warned:  You have expressed your willingness to settle this matter under the terms of the  agreement. Although, I disagree with many of the terms contained therein, you still wish to proceed under the terms of the settlement agreement as written. Settling this matter just to settle is not the right choice. However, based upon
your desire to settle under the terms as written, I will permit you to execute the  agreement over my objection. In combination with the Settlement Agreement, the letters submitted by the defendant
attorney which were signed by the plaintiff flatly refute any claim by him that he remained married
or was otherwise damaged on account of the defendant’ s negligence. See Malarkey v Piel supra