This is a fairly simple and straightforward legal malpractice case.  Worker falls from a ladder while working on an electrical light during construction.  Law firm fails to sue the owner, which in this case is the Dormitory Authority of the State of NY.  Nevertheless, summary judgment fails for both sides.  Here is the story in Ferrigno v Jaghab, Jaghab & Jaghab, P.C. 2015 NY Slip Op 51491(U)  Decided on October 7, 2015  Supreme Court, Kings County Rivera, J.

“The complaint sets forth forty-five allegations of fact in support of three causes of action. The first and second causes of action sound in legal malpractice. The third cause of action is for breach of contract. The summons and complaint allege that on August 10, 2009, plaintiff suffered injuries when he fell from an A-frame ladder after sustaining an electrical shock. At the time of the incident plaintiff was performing repairs to a light fixture at Medgar Evers College Prep School (hereafter MECPS), located at 1186 Carroll St., Brooklyn, New York (hereafter “the premises”). The premises is owned by the Dormitory Authority of the State of New York (hereafter DASNY). Prior to October 21, 2009, plaintiff retained Jaghab, P.C. to pursue an action to recover damages for those personal injuries.

The crux of plaintiff’s claim is that the defendants failed to include DASNY in the notice of claim as a defendant and therefore failed to bring a cause of action against a liable party. Plaintiff alleges that, had the defendants brought an action against DASNY, he would have prevailed under an action pursuant to Labor Law § 200, 240 (1), and 241(6).”

“Plaintiff relies solely on the fact that defendants failed to bring a claim against DASNY under Labor Law § 240 (1) in support of the allegation that defendants breached their duty to him. The following factors are not controverted. Defendants did not include DASNY in the notice of claim. Defendants failed to bring a claim against DASNY on plaintiff’s behalf. DASNY owned the premises at the time of plaintiff’s accident. Plaintiff is precluded from bringing an action against DASNY due to the failure to include DASNY in the notice of claim.

Plaintiff must establish that DASNY was a liable party and that he would have prevailed on the underlying claim against DASNY under Labor Law § 240 (1) to prevail on the motion.

In support of the motion the plaintiff submitted his deposition. Plaintiff testified that he was engaged in repairing a lighting fixture when he received an electric shock and [*5]fell from an A-frame ladder. This establishes, prima facie, that plaintiff was within the protective ambit of Labor Law § 240(1) at the time of the accident (see Eisenstein v Board of Mgrs. Of Oaks at La Tourette Condominium Sections I-IV, 43 AD3d 987, 842 NYS2d 72). As mentioned above, Labor Law § 240 (1) creates a nondelegable duty and absolute liability upon owners for failure to provide proper safety devices for workers subject to elevation-related risks (see Labor Law § 240 [1]). Accordingly, plaintiff meets his prima facie burden on legal malpractice by establishing that the defendants failed to sue DASNY when they were the owners of the premises where the accident occurred and that plaintiff’s activity was work contemplated within the protective ambit of Labor Law § 240 (1).

The burden now shifts to the defendant to come forward with sufficient evidence to raise a triable issue of fact (see Ernest v Pleasantville Union Free School Dist., 28 AD3d 419, 811 NYS2d 573 [2nd Dept 2006]). In opposition to plaintiff’s motion for summary judgment, defendants raise a triable issue of fact regarding whether plaintiff was engaged in an activity protected by Labor Law § 240 (1). Defendants submit the notice of claim to the City of New York. The notice of claim is signed and sworn to by the plaintiff as well as notarized. In pertinent part plaintiff states therein that he was “changing an overhead ballast” at the time of the accident. “[T]he task of replacing a ballast in a fluorescent light fixture falls within the category of routine maintenance” (Deoki v Abner Props. Co., 48 AD3d 510, 510). Work that “involve[s] replacing components that require replacement in the course of normal wear and tear… constitute[s] routine maintenance and not ‘repairing’ or any of the other enumerated activities” (Esposito v New York City Indus. Development Agency, 1 NY3d 526) and, therefore, is not protected activity under Labor Law § 240 (1).

As the motion papers contain different versions of the accident a triable issue of fact exists as to whether the plaintiff was engaged in work covered by Labor Law § 240 (1). Accordingly, plaintiff’s motion for summary judgment must be denied on these grounds.”

Fleisher v Ballon Stoll Bader & Nadler, PC  2015 NY Slip Op 31855(U)  October 5, 2015 Supreme Court, New York County  Docket Number: 158302/2012  Judge: Joan M. Kenney is another iteration of how difficult it is to sue an estates (or in this case a Medicaid planning) attorney.  On its face, the case seems simple.  Attorney is hired by Mrs. F to help plan for her mother’s medicaid situation, and to do a will for Mrs. F.  Then Mrs. F pre-deceases her mother, and her insurance policy and a totten trust now endanger the mother’s medicaid planning.

“Mrs. Litchman was a recipient of Medicaid benefits. She was in a nursing home towards the end of her life. Plaintiff alleges that defendants failed to identify the Policy and CD as assets owned by Mrs. Fleisher that would have an impact and effect on Mrs. Lichtman’s eligibility for Medicaid benefits, and failed to plan Mrs. Fleisher’s estate in a way that would maximize the value of her assets for her heirs and beneficiaries. Plaintiff contends that Mrs. Lichtman cannot accept the payment from Unum as it might be subject to a Medicaid lien and disqualify her from eligibility for certain medicaid benefits. Plaintiff further alleges that the Policy and CD would have been conveyed to Mrs. Fleisher’s estate and would have ultimately passed to plaintiff as the residuary beneficiary if defendants had prevented the transfer of these assets to Mrs. Lichtman. ”

“Here, plaintiff David Fleisher is suing both individually and as the proposed executor and beneficiary of the Estate of Marilyn R. Lichtman, also known as Marilyn Lichtman Fleisher, deceased. Individually as a beneficiary of the estate, plaintiff is not entitled to bring a cause of action against defendant attorneys due to lack of privity. Plaintiff is, however, entitled to bring a cause of action against defendant attorneys as a personal representative of the estate. Plaintiff submits a copy of a decision dated December 9, 2014, in which the Honorable Diana A. Johnson stated that “letters testamentary shall issue to David Fleisher and Ruby Erkkila upon duly qualifying according to law.” (See Plaintiffs Exhibit F). Unfortunately, plaintiff failed to demonstrate that the “letters testamentary” were formally issued pursuant to the Surrogate’s decision. Plaintiff, as a “proposed executor” (as noted in the caption of this case) is not entitled to maintain this action without the letters testamentary.”

“Even if the plaintiff were allowed to bring this action against defendant once the proper letters testamentary were issues, plaintiff must plead and prove actual, ascertainable damages to the estate as a result of an attorney’s alleged malpractice. A complaint in a legal malpractice action will be dismissed pursuant to CPLR 3211 (a)(7) where “it fails to plead specific factual allegations demonstrating that, but for the … defendant’s alleged negligence … the plaintiff would not have incurred any damages” (Rudolfv Shayne, Dachs, Stanisci, Corker & Saucer, 8 NY3d 438, 441, 835 NYS2d 534, 867 NE2d 385). Proximate causation is a requisite element of a legal malpractice claim ·and it must be based on more than “mere speculation.” Mere speculation about a loss resulting from an attorney’s alleged omission is insufficient to sustain a prima facie case of legal malpractice (Giambrone v Bank of NY, 253 AD2d 786 [1998]). ”

“In opposition, plaintiff argues that Mrs. Fleisher’s estate was damaged in the amount of $216,798.04, due to defendants’ failure to properly advise Mrs. Fleisher to change the beneficiary of the life insurance policy and CD in order to maximize the value of the estate’s assets for the benefit of its beneficiaries. Plaintiff alleges that defendant attorneys were hired for the purpose of both estate planning and Medicaid planning for both Mrs. Fleisher and her mother. Plaintiff also claims that, pursuant to the retainer agreement, defendants were to advise on and effectuate transfers of assets in order to maximize the value of the estate and to preserve Ms. Lichtman’s eligibility for Medicaid benefits, but failed to do so, which resulted in the loss of $216, 798.04 in assets to the estate and its beneficiaries. In order to establish proximate cause in a legal malpractice action, plaintiff must demonstrate that “but for” the defendants’ negligence, Mrs. Fleisher would not have transferred any assets to her mother, and instead that these assets would have become part of the estate and ultimately reach plaintiff as the beneficiary. Here, plaintiff cannot prove that “but for” the defendants’ advice, or lack thereof, Mrs. Fleisher would have changed the named beneficiary on the CD and trust from her mother to plaintiff. Plaintiffs complaint merely alleges, in a conclusory fashion, that defendants’ deviation from “good and accepted” legal practices resulted in the estate being devalued in the amount of$216,000.00. Accordingly, the legal malpractice 6 [* 6] action must be dismissed. “

A successful criminal defense legal malpractice case is the rarest form of the species.  Meralla v Goldenberg  2015 NY Slip Op 01873 [126 AD3d 449]  March 5, 2015  Appellate Division, First Department  has everything that the criminal defendant needs.  As the Court of Appeals has repeatedly held, “In order to open the door for even a colorable claim of innocence, criminal defendants must free themselves of the conviction, for the conviction precludes those potential plaintiffs from asserting innocence in a civil suit . . . . Accrual occurs “when the claim becomes enforceable, i.e. when all elements of the tort can be truthfully alleged in the complaint” . . . .

It is only when the criminal proceeding has been terminated without a conviction that a plaintiff can assert innocence or at the very least a colorable claim thereof . . . . [A] criminal legal malpractice plaintiff cannot assert innocence while the criminal charges remain pending. Britt v. Legal Aid Soc’y, Inc., 95 N.Y.2d 443, 447-48, 741 N.E.2d 109, 112, 718 N.Y.S.2d 264, 267 (2000)

“In this legal malpractice action, plaintiff alleges that defendant attorney’s failure to move to sever plaintiff’s criminal trial from that of a codefendant, and to move to exclude certain evidence based on the collateral estoppel effect of a prior trial in which plaintiff was acquitted of a related crime, caused him to be convicted and incarcerated. Plaintiff served more than six years in prison before this Court overturned his conviction based on defendant’s ineffective assistance of counsel (People v Meralla, 228 AD2d 160 [1st Dept 1996], lv denied 88 NY2d 989 [1996]). After the prosecution determined that plaintiff could not be retried, he commenced this action to recover damages against defendant.”

“As this Court held on the appeal overturning plaintiff’s conviction, defendant’s delay in moving to exclude evidence based on collateral estoppel, and failure to seek a severance before the second trial, “amounted to fundamentally flawed, less than meaningful representation” and “substantially impaired the defense” (Meralla, 228 AD2d at 161). Accordingly, drawing all inferences in favor of plaintiff as the nonmoving party (see Ortega v Everest Realty LLC, 84 AD3d 542, 545 [1st Dept 2011]), an issue of fact exists as to whether defendant’s alleged negligence was the proximate cause of plaintiff’s alleged injuries (see Kaminsky v Herrick,[*2]Feinstein LLP, 59 AD3d 1, 9 [1st Dept 2008], lv denied 12 NY3d 715 [2009]). It cannot be said, as a matter of law, that the outcome of the matter would have been substantially the same even if defendant had made the motions before trial and in writing (see id.).”

We again look at Trapp-White v Fountain  2015 NY Slip Op 31835(U)  September 30, 2015
Supreme Court, New York County  Docket Number: 150719/2015  Judge: Donna M. Mills.

“Plaintiff is a native of Belize, residing in Suffolk County, New York. She entered the United States illegally in 1986, and soon thereafter the Immigration and Naturalization Service instituted deportation proceedings against her. On or about October 17, 1991, plaintiff was granted a voluntary departure from the United States. by May 17, 1992. By then, she had married a non-citizen, and she remained in the United States, allegedly because of her concern for her three young children, all born here. She had a fourth child in 1993, also born here. ”

“Plaintiffs legal malpractice claim is based primarily on defendants’ purported failure to file a motion to reopen her deportation order and to move for a stay of removal. While plaintiff was principally represented by Fountain, the complaint implicates Rothbell, his partner, and the Firm as being vicariously liable. Plaintiff claims that but for defendants’ negligence, she would not have been deported. ”

“Plaintiff alleges that, months after engaging him, Fountain “never provided her any information or update on the status of her case.” Complaint, il 33. She maintains that she “constantly e-mailed” Fountain about the progress of her case, but is now unable to produce any copies of such messages. She claims that, after her two years in Belize, she has “since forgotten the password to my e-mail account.” Trapp-White aff, il 16. Defendants offer no explanation or description of activity on plaintiffs case after June 2011 until plaintiffs arrest the following year. They acknowledge that “the motion to reopen [the Deportation order] was not filed.” Id. There is ample evidence of Fountain’s active attention to plaintiffs case once she was in jail. He sent an email to Marty Ryan (Ryan), Deputy Chief Counsel, Immigration and Customs Enforcement (ICE), on March 7, 2012, introducing plaintiffs case to Ryan, and asking ICE to join in a motion to reopen plaintiffs deportation order. Fountain affirmation, exhibit A at 9-10. Fountain labeled his message “Urgent,” and Ryan replied by email the same day. Ryan raised several questions, including did plaintiff “have any criminal issues,” and advised Fountain to proceed with a petition and application for relief, addressed to Jason Aguilar (Aguilar), Acting -Chief Counsel. Id. at 8-9. On March 8, 2012, the next day, Fountain submitted a collection of pertinent documents to Ryan and Aguilar, and informed them that plaintiff “confirmed that she has no criminal issues.” Id. at 8. Over the next few days, Fountain and Aguilar exchanged messages about White’s military service and plaintiffs five children. Id. at 5-7. On March 16, 2012, Fountain wrote to Aguilar that all of the children, ranging from age 11to21, live at home, have “a very strong relationship with their mother (as well as Mr. White, who has raised them as though they were his children),” and attend church regularly. Id. at 4-5. Aguilar’s next message, on March 17, 2012, apparently took Fountain by surprise. “I have information that her two sons were arrested and are currently charged with murder and gun trafficking. Why was this not brought to my attention?” Id. at 4. Fountain replied: “This is the first that I have heard of this!” Id. In fact, plaintiffs two adult sons were arrested on February 10, 2012, three days before plaintiffs arrest, the older on charges of sale of firearms, the younger on charges of murder, sale of a controlled substance, sale of firearms, and unauthorized use of a vehicle. In a follow up message to Aguilar, on March 17, 2012, Fountain, citing White as his source, claimed “that while the sons continued to have rooms at home and to have some clothes there, they were often out of the house and staying with their girlfriends or friends.” Id. at 3. Fountain further paraphrased White’s contention that “his relationship with them had been strained because they would not follow his rules.” Id. White, according to Fountain, also maintained that he learned of the arrests only after plaintiffs arrest, and he shielded her from the news for over a month. Id. ”

“Defendants contend that plaintiff cannot establish negligence in their representation, when they chose between reasonable courses of action. See Hand v Silberman, 15 AD3d 167, 167 (1st Dept 2005) (“Neither an error in judgment nor in choosing a reasonable course of action constitutes malpractice”). Defendants contend that “[p ]roceeding with the filing of the joint motion would have necessarily required plaintiff to disclose her current address and location, which could have exposed her location and led to her arrest and deportation.” Bruno affirmation, ,-i 21. However, nowhere do defendants identify the time, place or manner in which they conveyed this information to plaintiff. Defendants state that plaintiff “advised Attorney Fountain not to proceed with the filing of the motion for this very reason.” Id. She strongly disputes this. “Contrary to defendants’ claims, I specifically hired them to file these motions.” Trapp-White aff, ,-i 15. She asserts that “before I even retained Fountain, I knew that I would be required to disclose my address in order to obtain permanent lawful residence and that by doing so, I risked alerting authorities to my location and being deported.” Id. Defendants insist that “[t]here would be no other reason for Attorney Fountain to make sure all of the papers were prepared but then not to submit them, other than plaintiff, recognizing the risk associated with filing the joint motion, asked defendants not to do so.” Bruno aff, ~ 22. They fail to recognize that legal malpractice is an alternate explanation, as plaintiff asserts. While choosing among reasonable alternatives is a defense to a claim of legal malpractice, defendants fail to identify or describe the alternative that they choose after June 2011. It is not defendants’ conduct up to June 2011 that plaintiff complains of, but, rather, their purported inaction from June 2011 until her arrest in February 2012. They never state that plaintiffs alleged refusal to file a motion to reopen the deportation order for fear of exposure actually ended the matter. Nothing memorializes such an understanding. The issue of what legal advice and services defendants gave plaintiff remains unsettled, and warrants continuation of the action. Defendants do not announce what course of action they recommended to plaintiff after she assembled her package of materials, with their assistance, for submission to the immigration authorities. They intimate that they advised her that submission would have exposed her to arrest and deportation, but left the decision to her. See Bruno aff, ~ 22 (“plaintiff, recognizing the risk associated with filing the joint motion, asked defendants not to do so”). Yet, the inaction led to the same unwelcome results, arrest and deportation. ”

“Defendants also argue that Cella had l 0 days to file the motion to reopen plaintiffs deportation order, already drafted by defendants, and to move for a stay of removal. ,According to defendants, it was Cella’s failure to act that was the proximate cause of plaintiffs alleged damages,. Defendants had 14 months during which they represented plaintiff in order to avoid having her imprisoned and deported. Yet, they contend that Cella should have been able to accomplish that in 10 days, and that only Cella should be liable for plaintiffs damages. Balancing 10 days against 14 months may be an unreasonable comparison, but it is an issue that warrants continued examination by the court. The action shall not be dismissed on the basis of Cella’s succession in representing plaintiff. ”

“How a judge might have ruled on plaintiffs motion to reopen her order of deportation in 2011 is also purely speculative, even if it were filed with ICE cooperation. However, two-and-ahalf years later, plaintiff received favorable consideration by United States immigration authorities, apparently without the need for judicial intervention. Therefore, the question of what might have been cannot be decided at this time. The action shall continue. Lappin v Greenberg, 34 AD3d 277, 279 (1st Dept 2006) (“To survive a CP.LR 3211 [a] [7] preanswer dismissal motion, a pleading need only state allegations from which damages attributable to the defendant’s conduct may reasonably be inferred”). ”

Trapp-White v Fountain  2015 NY Slip Op 31835(U)  September 30, 2015  Supreme Court, New York County  Docket Number: 150719/2015  Judge: Donna M. Mills is an unusual decision in the immigration – legal malpractice filed.  First, there are a number of interesting details that come from ICE and support plaintiff’s case, details which are rarely in the hand of Plaintiff.  Second, it covers not only the liability aspect of legal malpractice, but also the question of successor counsel, in this case plaintiff herself.

Plaintiff is a native of Belize, residing in Suffolk County, New York. She entered the United States illegally in 1986, and soon thereafter the Immigration and Naturalization Service instituted deportation proceedings against her. On or about October 17, 1991, plaintiff was granted a voluntary departure from the United States. by May 17, 1992. By then, she had married a non-citizen, and she remained in the United States, allegedly because of her concern for her three young children, all born here. She had a fourth child in 1993, also born here. In 1995, plaintiff got her nursing license and divorced her first husband. She married / Calbert White (White), a U.S. citizen, in 1997. They later had a child together. In late 1997, a Form 1-130 petition on plaintiffs behalf was approved, after previously being denied.’ She took no further action on her immigration status until January 10, 2011, when she retained defendants. She wanted to settle her immigration status, bec~ause her 1991 deportation order was never rescinded. Defendants’ efforts were unsuccessful. Plaintiff was arrested on February 13, 2012, incarcerated until April 3, 2012, then deported. Shortly before she was deported, she retained Cella & Associates, LLC (Cella) to replace defendants. White continued his efforts on plaintiffs behalf, working with Cella. After almost two years in Belize, plaintiff received her Alien Registration Receipt Card (Green Card), and returned to the United States. The instant action commenced on January 23, 2015, with the filing of a complaint asserting a cause of action for legal malpractice.”

“Plaintiffs legal malpractice claim is based primarily on defendants’ purported failure to file a motion to reopen her deportation order and to move for a stay of removal. While plaintiff was principally represented by Fountain, the complaint implicates Rothbell, his partner, and the Firm as being vicariously liable. Plaintiff claims that but for defendants’ negligence, she would not have been deported. , The complaint states that defendants proclaimed their competence “in immigration, visas and citizenship” on their web site. Complaint, ,-i 26. Fountain, who was principally responsible for plaintiffs case, was cited on the web site as particularly expert: “In his years representing immigrants, he has not lost’!- case. His successes have included complicated cases of asylum, waivers, hardship and naturalization.” Id. Fountain allegedly advised plaintiff that resolution of her case would take about four months. Id., ,-i 31. He had plaintiff take a medical examination, arranged for her and White to have a psychological assessment, and to complete several government forms. Defendants provide a set of documents and materials that appear to be a complete or near-complete package for submission to the immigration authorities on plaintiffs behalf. Fountain aff, exhibit C. All are dated in early June 2011. Plaintiff alleges that, months after engaging him, Fountain “never provided her any information or update on the status of her case.” Complaint, il 33. She maintains that she “constantly e-mailed” Fountain about the progress of her case, but is now unable to produce any copies of such messages. She claims that, after her two years in Belize, she has “since forgotten the password to my e-mail account.” Trapp-White aff, il 16. Defendants offer no explanation or description of activity on plaintiffs case after June 2011 until plaintiffs arrest the following year. They acknowledge that “the motion to reopen [the Deportation order] was not filed.” Id. ”

“How a judge might have ruled on plaintiffs motion to reopen her order of deportation in 2011 is also purely speculative, even if it were filed with ICE cooperation. However, two-and-ahalf years later, plaintiff received favorable consideration by United States immigration authorities, apparently without the need for judicial intervention. Therefore, the question of what might have been cannot be decided at this time. The action shall continue. Lappin v Greenberg, 34 AD3d 277, 279 (1st Dept 2006) (“To survive a CP.LR 3211 [a] [7] preanswer dismissal motion, a pleading need only state allegations from which damages attributable to the defendant’s conduct may reasonably be inferred”). ”

More and more cases are resolved by summary judgment; the number of trials has plummeted over the past 15 years.  Practitioners have always given strong consideration to summary judgment motions, and must consider all arguments that can be made.  Here, in Pedote v Kelly  January 28, 2015  2015 NY Slip Op 00737 [124 AD3d 855] Appellate Division, Second Department the stakes are apparent:

“Ordered that the order is modified, on the law, (1) by deleting the provision thereof denying that branch of the defendant’s motion which was for summary judgment dismissing the complaint, and substituting therefor a provision granting that branch of the motion, and (2) by deleting the provision thereof granting the plaintiffs’ cross motion for leave to amend the complaint, and substituting therefor a provision denying the cross motion; as so modified, the order is affirmed, with costs to the defendant.

The defendant attorney represented the plaintiffs in an action against the owner of a manufactured home park and in eviction proceedings. The plaintiffs commenced this action to recover damages for legal malpractice, alleging, inter alia, that the defendant failed to file a timely notice of appeal from an order adverse to them, failed to comply with discovery, and failed to communicate to them a settlement offer. The defendant moved for summary judgment dismissing the complaint and for the imposition of sanctions pursuant to 22 NYCRR 130-1.1 (a), and the plaintiffs cross-moved to amend the complaint. The Supreme Court denied the defendant’s motion and granted the plaintiffs’ cross motion.

“In an action to recover damages for legal malpractice, a plaintiff must demonstrate that an attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the breach of such duty was the proximate cause of the plaintiff’s damages” (Portilla v Law Offs. of Arcia & Flanagan, 112 AD3d 901, 901 [2013]; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]; Soliman v O’Connor, McGuinness, Conte, Doyle & Oleson, 118 AD3d 866, 867 [2014]). “To succeed on a motion for summary judgment dismissing the complaint in a legal malpractice action, the defendant must present evidence in admissible form establishing that the plaintiff is unable to prove at least one essential element of his or her cause of action alleging legal malpractice” (Scartozzi v Potruch, 72 AD3d 787, 789-790 [2010]; see Biberaj v Acocella, 120 AD3d 1285, 1286 [2014]).

[*2] Here, the defendant established his prima facie entitlement to judgment as a matter of law by demonstrating that he did not fail to exercise the skill and knowledge commonly possessed by a member of the legal profession. In that respect, the defendant demonstrated that he filed a timely notice of appeal from an order adverse to the plaintiffs, that the failure to comply with discovery was the result of the plaintiffs’ decision to retain a different attorney and concomitant failure to cooperate with him, and that no settlement offer was ever communicated to him. In opposition, the plaintiffs failed to raise a triable issue of fact.

Accordingly, the Supreme Court should have granted that branch of the defendant’s motion which was for summary judgment dismissing the complaint (see Guerrera v Zysk, 119 AD3d 647, 648 [2014]; Soliman v O’Connor, McGuinness, Conte, Doyle & Oleson, 118 AD3d 866 [2014]).”

Of all the fields of law, matrimonial law ranks high in the consumer dissatisfaction index.  There are often disparities of income which leads to disparity of representation of the less-monied spouse.  A frequent complaint about matrimonial attorneys concerns the ease with which they enter and leave cases, often on the eve of trial.  Clients often relate that matrimonial attorneys make large financial demands at times where they have strong leverage.

In this pro-se matrimonial case, summary judgment was awarded to the attorneys.  Schiff v Sallah Law Firm, P.C.  2015 NY Slip Op 03820 [128 AD3d 668]  May 6, 2015
Appellate Division, Second Department gives none of the background facts, but one may surmise that the pro-se plaintiff felt cornered into settlement of a divorce and turned on her attorneys right after.

“The plaintiff retained the defendants Donald R. Sallah and Sallah Law Firm, P.C. (hereinafter the law firm), to represent her in a divorce action commenced by her former husband. The divorce action was settled by a stipulation. The plaintiff thereafter commenced this action against the law firm, Donald R. Sallah, Dean J. Sallah, Patrick M. Kerr, Theresa Hansen, and Francine J. Zecca, alleging that they had committed legal malpractice. In an order dated July 31, 2009, the Supreme Court granted that branch of the defendants’ motion which was pursuant to CPLR 3211 (a) (8) to dismiss the complaint insofar as asserted against Hansen. After certain discovery was conducted, the remaining defendants (hereinafter collectively the Sallah defendants) moved for summary judgment dismissing the complaint insofar as asserted against them.

“In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney ‘failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007], quoting McCoy v Feinman, 99 NY2d 295, 301-302 [2002]; see Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756 [2014]). “A claim for legal malpractice is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel” (Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083 [2005]; see Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d at 757; Steven L. Levitt & Assoc., P.C. v Balkin, 54 AD3d 403 [2008]).

[*2] Here, the Sallah defendants established, prima facie, that the law firm, Donald R. Sallah, Dean J. Sallah, and Patrick M. Kerr did not fail to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that settlement of the underlying divorce action was not effectively compelled by any mistakes on their part (see Boone v Bender, 74 AD3d 1111, 1113 [2010]; Luniewski v Zeitlin, 188 AD2d 642 [1992]). Further, the Sallah defendants established, prima facie, that the defendant Francine J. Zecca could not be held liable for professional malpractice because she was not an attorney.”