All the non-tax liability claims in Treanor v Dimopoulos 2023 NY Slip Op 32260(U)
July 5, 2023 Supreme Court, New York County Docket Number: Index No. 159106/2022
Judge: Mary V. Rosado are dismissed. Claims that advice on how to pay certain awards caused unnecessary tax liability survive.

“Plaintiff alleges that Defendants did not disclose to Plaintiff their “intimate relationship” with Dr. Abrams or purported allegiance to him (id. at 126). Plaintiff alleges that she met with Dr. Abrams four times and that he asked inappropriate questions about sexual acts3 (id. at 1, 27-29). “On or about October 2018 (sic)” Dr. Abrams issued a report where he concluded that both parents had loving relationship with their children, and that access should be equal, and that the current schedule should remain in place (id. at~ 33). Despite this outcome, Plaintiff alleges Dr. Abrams “punished” her in the report due to Plaintiffs objection to Dr. Abrams’ “sexual inquiries” by stating that Plaintiff “was not as intelligent as Adam, and that Adam provided a little more for the
children’s needs than Plaintiff’ (id. at, 34).

Plaintiff alleges that on December 20, 2018, the matrimonial court issued an order deeming her the monied spouse based on imputed income and its failure to impute income to Adam, resulting in Plaintiffs obligations to pay child support and amounts to maintain the marital residence (id. at, 35).”

“The breach of contract and breach of fiduciary duty claims are dismissed as duplicative of the legal malpractice cause of action. As to the breach of contract cause of action, the case of Walter v Castrataro is instructive (94 AD3d 872 [2d Dept 2012]). In that case, the Second Department found that a plaintiffs breach of contract claim who alleged that her former attorney failed to file an application for pendente lite support, failed to move to vacate a forensic report, and failed to modify a stipulation was nothing more than a rephrasing of a legal malpractice claim The breach of contract and breach of fiduciary duty claims are dismissed as duplicative of the legal malpractice cause of action. As to the breach of contract cause of action, the case of Walter v Castrataro is instructive (94 AD3d 872 [2d Dept 2012]). In that case, the Second Department found that a plaintiffs breach of contract claim who alleged that her former attorney failed to file an application for pendente lite support, failed to move to vacate a forensic report,
and failed to modify a stipulation was nothing more than a rephrasing of a legal malpractice claim (id. at 873). Moreover, there are no allegations related to breaching a promise to acehive a specific result, but only allegations about breaches of vague and non-specific (and somewhat boilerplate) provisions of the retainer agreement (see Mamoon v Dot Net Inc., 135 AD3d 656 [1st Dept 2016] citing Sage Realty Corp. v Proskauer Rose, 251 AD2d 3 5, 3 9 [1st Dept 1998] [ dismissing breach of contract claim as duplicative of legal malpractice claim where there were no allegations about a breach of a promise to achieve a specific result]; see also Alphas v Smith, 147 AD3d 557 [1st Dept 2017]). Thus, the breach of contract cause of action is dismissed.”

” Finally, there is no actionable malpractice from Defendants’ motion seeking to withdraw as counsel due to their fundamental disagreements with Plaintiff over the strategy to move forward in the underlying matrimonial action. Indeed, the Rules of Professional conduct explicitly states that a lawyer may withdraw from representing a client if the client “insists upon taking action with which the lawyer has a fundamental disagreement” (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.16[ c] [ 4]) or if the client “renders the representation unreasonably difficult for the lawyer to carry out employment effectively” (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.16[ c] [7]).

However, Plaintiff’s allegation that the Defendants “provided improper advice as to the payment of certain amounts required under the pendente lite order, which caused Ms. Treanor to incur substantial tax liability” survives (see NYSCEF Doc. 4 at , 124). Accepting the factual allegations as true, as this Court must on a pre-answer motion to dismiss, failure to advise a client on the tax consequences of withdrawing money from retirement accounts in a divorce action states a claim for legal malpractice for purposes of a pre-answer motion to dismiss (Fielding v Kupferman, 65 AD3d 437 [1st Dept 2009]).”