Commercial client hires a law firm to litigate its claims against a municipality.  The law firm fails to file a Notice of Claim and similarly fails to file a motion seeking leave to file a late notice of claim.  The worst is yet to come.  The law firm has allowed its malpractice insurance to lapse, and has no assets.  How can this happen?

Garrison Contr., Inc. v Medina, Torrey, Mamo & Camacho, P.C. 2015 NY Slip Op 30782(U) May 15, 2015 Supreme Court, Putnam County Docket Number: 603/13 Judge: Lewis J. Lubell is an example of just how badly a law firm can hurt its clients.

“Plaintiffs bring this action for legal malpractice against, among others, the Law Firm of Medina, Torrey, Mamo & Camacho, P.C. (the “Firm”) and one of its members in his individual capacity, By Decision & Order of February 17, 2015, the Court granted Torrey’s 1 motion to dismiss as unopposed. Thereafter, the Court was advised that the motion had in fact been adjourned. That decision is now vacated. [* 1] David Torrey (“Torrey”), who personally handled the underlying litigation in an action entitled Town of Philipstown v. Garrison Contracting Inc. (Putnam County Index No. 324/2008; [the “Underlying Action”]). The thrust of this legal malpractice 2 action is the failure of Defendants to have timely filed a notice of claim with the Town of Philipstown on behalf of Plaintiffs in connection with Plaintiffs’ allegations against Philipstown, by way of amended answer with counter-claims in the Underlying Action and, in any event, the failure of Defendants to have sought leave to file a late notice of claim in connection therewith. Plaintiffs note that it was the very absence of a notice of claim and failure to have sought leave to file a late notice of claim that ultimately lead to the dismissal of Plaintiffs’ counterclaim against Philipstown upon appeal (see Town of Philipstown v Garrison Contr., Inc., 85 AD3d 1014 [2d Dept 2011]).

“Plaintiffs failed to exercise due diligence in attempting to serve the summons and complaint upon Torrey within 120 days of the filing of the complaint, nor ever for that matter. It was only upon learning during the course of discovery that the Firm had allowed its malpractice insurance policy to lapse, had no assets and would not be able to satisfy any judgment, that Plaintiffs turned their attention to Torrey who had not yet been served with process. Despite Plaintiffs’ ongoing knowledge of Torrey’s whereabouts, availability and participation in the underlying lawsuit as a member of the Firm, Plaintiffs did not serve Torrey with process until November 20, 2014, some twenty months after the commencement of the action. “

Recently we told a mother that she had little likelihood of success in suing her son’s criminal defense attorney.  Questions of privity aside, the bar is extraordinarily high in trying to sue after a conviction.  Social policy and the Courts have set up a situation in which the lack of “actual innocence” acts as a bar to the legal malpractice claim.  Here is Justice Braun discussing the matter in Kaplan v Khanna     2015 NY Slip Op 25158  Decided on May 15, 2015  Supreme Court, New York County.

” Where a plaintiff pleads guilty in an underlying criminal prosecution, expressly admitting his or her guilt, and that plea remains undisturbed, it precludes a legal malpractice claim as a matter of law (see Carmel v Lunney, 70 NY2d 169, 173 [1987] [“To state a cause of action for legal malpractice arising from negligent representation in a criminal proceeding, plaintiff must allege his innocence or a colorable claim of innocence of the underlying offense (citation omitted), for so long as the determination of his guilt of that offense remains undisturbed, no cause of action will lie. [*2]Here, because plaintiff’s conviction by plea of a misdemeanor violation of the Martin Act has not been successfully challenged, he can neither assert, nor establish, his innocence. He has thus failed to state a cause of action .”]; Alampi v Russo, 345 NJ Super 360, 371 [NJ Super AD 2001] [to permit the plaintiff in a legal malpractice action to “go behind a federal guilty plea … would undermine the integrity of the federal guilty plea in pursuit of a highly speculative thesis-that plaintiff would have achieved an optimum outcome’ of no prosecution if his first attorney had in retrospect used different tactics.”]). Moreover, in pleading guilty before the District Judge, plaintiff acknowledged the factual basis for the guilty plea, that he entered it willingly and voluntarily, and that he was satisfied with his attorney’s representation, and that court found that there was a factual basis for the plea of guilty (cf. Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 757-758 [2nd Dept 2014] [“The plaintiff’s allegations that he was coerced into settling the litigation were utterly refuted by his own admissions during the settlement proceeding that he had discussed the terms of the settlement with his attorneys, that he understood the settlement terms and had no questions about them, that he was entering into the settlement freely, of his own volition, and without undue influence or coercion, and that he was satisfied with his legal representation.” Thus, the legal malpractice cause of action was dismissed, upon a CPLR 3211 (a) (7) motion]).”

Facebook is the Mount Everest of Intellectual Property litigation quests.  It’s just so big!  When the lawfirms in this case came across a potential client who just might own half of Facebook, all caution was forgotten.  Sure, the plaintiff resided in the poorest county in New York, where there are more cows then people.  Sure, he had a slightly deficient background or a cover story of how he might have owned a lot of facebook, but, gollly gee, It’s just so big!

Anyway, Facebook, Inc. v DLA Piper LLP (US)   2015 NY Slip Op 30764(U)  May 11, 2015  Supreme Court, New York County  Docket Number: 653183/2014  Judge: Eileen A. Rakower  is the result.

“This is an action for malicious prosecution and violation of New York Judiciary Law § 487 arising from various law firms and attorneys’ alleged participation in a fraudulent breach of contract lawsuit against plaintiffs, Facebook, Inc. (“Face book”) and Mark Elliot Zuckerberg (“Zuckerberg”) (collectively, “Plaintiffs”). Non-party Paul Ceglia (“Ceglia”) filed the underlying breach of contract action in June 2010 in the Supreme Court of Allegany County, New York, under the caption, Paul D. Ceglia v. Mark Elliot Zuckerberg and Facebook, Inc., No. 1 O-cv-00569-RJA (W.D.N.Y.) (the “Ceglia Action”). Plaintiffs claim that Ceglia forged the purported contract document in issue in that case, and that defendants, DLA Piper (US) (“DLA Piper”), Christopher P. Hall (“Hall”), John Allcock (“Allcock”), Robert W. Brownlie (“Brownlie”), Gerard A. Trippitelli (“Trippitelli”) (and together with DLA Piper, Hall, Allcock, and Brownlie, the  “DLA Defendants”), Paul Argentieri & Associates (“P A&A”), Paul A. Argentieri (“Argentieri”) (and together with PA&A, the “Argentieri Defendants”), Lippes Mathias Wexler Friedman LLP (“LMWF”), Dennis C. Vacco (“Vacco”), Kevin J. Cross (“Cross”) (and together with LMWF and Vacco, the “Lippes Defendants”), Milberg LLP (“Milberg”), Sanford P. Dumain (“Dumain”), and Jennifer L. Young (“Young”) (and together with Mil berg and Dumain, the “Mil berg Defendants”) (collectively, “Defendants”), are various law firms and attorneys who pursued the Ceglia Action, on Ceglia’s behalf, with knowledge that the subject document was forged.

Plaintiffs’ complaint alleges that DLA Defendants and Lippes Defendants entered appearances for Ceglia in the Ceglia Action, “[ o ]n April I I, 20 I I-after (on information and belief) Marks and the Kasowitz lawyers had notified their co-counsel that they had discovered [evidence of forgery] on Ceglia’s [hard drive] and that Ceglia’s claims were fraudulent”. (Compl. if 62). Plaintiffs’ complaint further asserts: Also on April I 1, 201 I, Ceglia’s new team oflawyers filed a 25-page amended complaint (the “Amended Complaint”) that repeated Ceglia’s false claims. The Amended Complaint was signed by Hall of DLA Piper and also listed as counsel Allcock, Brownlie, and Trippitelli otDLA Piper; Vacco and Cross of Lippes Mathias; and Argentieri. Like the original Complaint, the Amended Complaint attached a ‘copy of the forged [contract document] as an exhibit, represented that the [this document] was authentic, and claimed that Zuckerberg had breached the purported contract. (Compl. if 63).

Turning now to Plaintiffs’ second cause of action, for violation of New York Judiciary Law § 487, pursuant to Judiciary Law § 487, any attorney or counselor who “is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party” is “guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action.” (Jud. Law § 487). Section 487′ s “evident intent” is “to enforce an attorney’s special obligation to protect the integrity of the courts and foster their truth-seeking function.” (Amalfitano v. Rosenberg, 12 N.Y.3d 8, 14 [2009]). Thus, allegations that defendant deceived or attempted to deceive the court with fictitious documents may be sufficient to state a cause of action for violation of Judiciary Law § 487. (Maze! 315 W 35th LLC v. 315 W 35th Assoc. LLC, 120 A.D.3d 1106, 1107 [1st Dep’t 2014] 7 [* 7] [“Plaintiffs evidence showing that defendant presented false assignment documents for recordation in the City Register and sent a letter to the justice stating falsely that his client was the true owner of the notes and mortgages establishes an egregious act of intentional deceit of the court sufficient to support the cause of action.”]; Kur man v. Schnapp, 73 A.D.3d 435, 435 [1st Dep’t 2010] [“Plaintiff stated a cause of action under Judiciary Law § 487 by alleging that defendant deceived or attempted to deceive the court with a fictitious letter addressed to him from the former licensing director of the City’s Taxi and Limousine Commission (TLC) that stated, inter alia, that plaintiff was under a lifetime ban on owning any licenses with the TLC.”]). Here, Plaintiffs’ complaint alleges that Moving Defendants maintained a breach of contract action as against Facebook and Zuckerberg even though Moving Defendants knew that the contract in issue in that action was a forgery. (Compl. ~~ 60-61, 67, 113 ). Plaintiffs’ complaint further alleges that Moving Defendants filed discovery motions and made arguments in court in reliance on the authenticity of a purported contract document that Moving Defendants knew to be forged. (Compl. irir 74-75; 95-96). Accepting Plaintiffs’ allegations as true and drawing all inferences in favor of the non-moving party, Plaintiffs’ complaint adequately alleges that Moving Defendants deceived or attempted to deceive the court presiding over the Ceglia Action with fictitious documents. Accordingly, viewing Plaintiffs’ complaint in the light most favorable to Plaintiffs, the four corners of Plaintiffs’ complaint are sufficient to state a cause of action for violation of Judiciary Law § 487 as against Moving Defendants, for purposes of surviving a motion to dismiss at this early stage of litigation.”

In this version of Dr. v. Lawyer, it’s a knock-out to the lawyer.  Doctor  joins a medical practice and comes under scrutiny for his advocacy of “pranic healing.”  “Pranic Healing® is a highly evolved and tested system of energy medicine developed by GrandMaster Choa Kok Sui that utilizes prana to balance, harmonize and transform the body’s energy processes. Prana is a Sanskrit word that means life-force. This invisible bio-energy or vital energy keeps the body alive and maintains a state of good health. In acupuncture, the Chinese refer to this subtle energy as Chi. It is also called Ruach or the Breath of Life in Hebrew”

So, anyway, back to the legal malpractice.  Doctor had the opportunity to review a series of corporate amendments, and did not go to see the changes when offered.  The changes might have been aimed at him, and he was let go. Litigation ensued in Mendoza v Akerman Senterfitt LLP   2015 NY Slip Op 04193  Decided on May 14, 2015  Appellate Division, First Department.

“Plaintiff is a doctor specializing in pediatric, prenatal, and neonatal medicine. In April 2000, he joined nonparty Children’s and Women’s Physicians of Westchester, LLP (CWPW). He signed both an Amended and Restated Partnership Agreement dated, January 29, 1999, and an employment agreement that was subsequently amended in April 2002.

During the negotiations between CWPW and plaintiff, CWPW was represented by defendant Eric W. Olson’s prior law firm, and plaintiff was represented by independent counsel.

On October 25, 2010, nonparty Dr. Leonard Newman, CWPW’s president, sent an email to CWPW’s managing partners, including plaintiff. Newman’s email forwarded an email from defendant Olson, now a member of defendant Akerman Senterfitt LLP, regarding certain amendments to the partnership agreement:

“I am forwarding to each of you the recommendation of our attorney, Eric Olson . . . in the development of a tiered structure for Managing Partners . . . .”Please review the explanation listed below from Eric Olson. Questions can be directed to Mr. Olson [at his office].”. . . You can come to [an office at CWPW’s principal place of business] to review the documents. However, due to the confidential nature of the documents, we need to limit their distribution beyond the Chairman’s Office. Please stop by before November 15th.”

Olson’s email stated, “This e-mail intends to summarize the two major changes to CWPW’s Partnership Agreement” — namely, “Implementation of a Tiered Managing Partner Structure” and “Entities as Partners” [to meet requirements in the agreement]. In addition to “the two major changes” that Olsen mentioned, the amendment also amended, as relevant here, the grounds for removal of managing partners and the grounds for dissociation of a partner.

On March 8, 2011, Olson sent plaintiff a notice that CWPW intended to terminate his employment based on breaches of the employment agreement — specifically, because of his “pranic healing” practice. Thereafter, plaintiff commenced the instant action asserting causes of[*2]action for aiding and abetting CWPW’s breach of its fiduciary duty to plaintiff, breach of defendants’ fiduciary duties to plaintiff, fraud, negligent misrepresentation, tortious interference with contract and/or prospective economic advantage, and legal malpractice. Plaintiff’s allegations are based on his contention that defendants drafted certain amendments, not mentioned in the email, to expedite and facilitate his termination from the partnership. Defendants moved to dismiss the complaint under CPLR 3211(a)(1) and (a)(7).

Contrary to plaintiff’s argument, the court applied the correct standards on this motion to dismiss and did not effectively convert the motion into one for summary judgment (see Zyskind v FaceCake Mktg. Tech., Inc., 110 AD3d 444 [1st Dept 2013]). The court properly deemed the above emails that were described and quoted in the complaint itself to be documentary evidence (see Amsterdam Hospitality Group, LLC v Marshall-Alan Assoc., Inc., 120 AD3d 431, 432-433 [1st Dept 2014]).

The legal malpractice claim was correctly dismissed because, as plaintiff acknowledged in his opening brief on appeal, defendants were CWPW’s attorneys, not his (see Waggoner v Caruso, 68 AD3d 1, 5 [1st Dept 2009], affd 14 NY3d 874 [2010]). Nor can plaintiff maintain a malpractice claim based on the fraud exception to the privity rule, since, as indicated, his fraud claim is not viable (see AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 595 [2005]; Griffith v Medical Quadrangle, 5 AD3d 151, 152 [1st Dept 2004]).”

It’s been 7 years since Bernie Madoff was arrested, yet his craftwork still is filtering through the legal malpractice world.  In Delollis v Archer  2015 NY Slip Op 04084  Decided on May 13, 2015  Appellate Division, Second Department we see an unsuccessful claim by benefit funds of the carpenters’ unions against their attorneys, whom they say should have detected the scheme.

“he plaintiffs, who are the trustees of several local and regional benefit funds affiliated with carpenters’ unions, commenced this action to recover damages for legal malpractice against the defendants Robert M. Archer and Archer, Byington, Glennon & Levine, LLP, alleging that the negligent performance of their professional duties resulted in losses relating to the Ponzi scheme orchestrated by Bernard L. Madoff and Bernard L. Madoff Investment Securities.

“In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary 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” (Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 757 [internal quotation marks omitted]; see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438). In addition, to establish causation, a plaintiff must show that he or she would not have suffered any damages but for the attorney’s negligence (see Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d at 757).

Here, accepting as true the facts alleged in the complaint and according the plaintiffs the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88), the complaint, on its face, failed to allege facts from which it could be reasonably inferred that the plaintiffs would not have suffered any damages but for the defendants’ negligence (see Sierra Holdings, LLC v Phillips, Weiner, Quinn, Artura & Cox, 112 AD3d 909, 910; Citidress II Corp. v Tokayer, 105 AD3d 798, 798-799; Wald v Berwitz, 62 AD3d 786).”

Judiciary Law § 487 claims are unique, and arise from the oldest statute in Angol-American jurisprudence.  Often misused, the statute is infrequently applied or upheld against its target. Hersh v Weg  2015 NY Slip Op 30698(U)  April 27, 2015  Supreme Court, New York County  Docket Number: 104360/2011  Judge: Jeffrey K. Oing is a prime example.

This story serves as an antidote to a Disney-view of family life.  We’ll let Justice Oing tell the story:

“These claims arise out of an intra-family dispute essentially pitting plaintiff son against his mother. The Appellate Division, First Department reversed this Court’s decision and order, and dismissed plaintiff son’s complaint against defendants, Betty Weg, Arnold Weg, S&G Hotel Corp., and plaintiff’s sisters, Brenda and Nancy Hersh (Hersh v Weg, 105 AD3d 539 [1st Dept 2013]). Thereafter, the County Clerk entered judgment dismissing plaintiff’s complaint on June 24, 2013 (NYSCEF Doc. No. 166).

I tried defendants’ counterclaims against plaintiff before a jury. The only principal to testify on behalf of defendants was plaintiff’s 82-year old mother, Esther Rachel Hersh. At the close of defendants’ presentation of their evidence on the counterclaims, plaintiff moved to dismiss the counterclaims. After hearing arguments, I granted the motion to dismiss: `Based on what we just have [heard] of the argument I grant the motion to dismiss on the ground that I find that the counterclaim plaintiffs have failed to establish prima facie the issue of whether or not Mark Hersh and nominal [defendant] BRA had consent and authorization to enter into the transactions that were entered into during the relevant period of 2007 to 2010. As noted during the argument here from counsel and as noted by this court the key person in all of this is Betty Weg. She should have been called on the case, plaintiff’s case, to tell the court exactly what transpired to those transactions. Mrs. Hersh was not the competent witness to be called on in this case. She had no idea. Her testimony was very noncommittal, was at times unclear, at the end of the day she relied on Betty to make sure everything was running fine. At the end of the day, if Betty did something outside the scope of her authority as president of S&G corporation, that’s a claim that S&G Corporation has against Betty Weg. Unfortunately, for the corporation, Mrs. Hersh has signed a release releasing its claims arising out of this case against Betty Weg so that there is no claim against Betty Weg at this point. So all of that is gone. So that what are we left with? At the end of the day we’re left with a corporation who has no claim to anybody at this point and I find that under these circumstances the counterclaim plaintiffs have failed to establish prima facie that there was no consent and authorization. At the end of the day Betty Weg was the key critical witness that needed to be here to testify. The fact that Mr. Murtha represent[s] she’s now available to testify, that’s neither here nor there at this point. (9/23/14 Decision and Order, at pp. 235-236 [NYSCEF Doc. No. 294]). Evidently, this dismissal did not end the family dispute. Plaintiff son now seeks to add defendants’ counsel as defendants in this action so as to assert against them a Judiciary Law § 487 claim. Plaintiff also seeks the imposition of sanctions against defendant S&G for maintaining allegedly frivolous counterclaims against him.”

“Plaintiff’s motion to amend the complaint is denied. The County Clerk entered judgment dismissing the complaint on June 24, 2013. As such, any subsequent papers and proceedings are deemed a nullity given that the action is no longer pending (Floyd v Salamon Bros., 249 AD2d 139, 140 [1st Dept 1998]). In any event, the proposed amendment seeking to interpose a section 487 claim against defendants’ counsel is palpably insufficient. Section 487 provides, in relevant part: An Attorney or counselor who: 1. Is guilty of any deceit or collusion, or consents to any deceit or collusion, intent to deceive the court or any party … Is guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be resolved in a civil action. Notwithstanding the proposed allegations in the amended complaint, the record is clear — nowhere was there ever an assertion or charge made by plaintiff or his counsel that defendants’ counsel was deceiving or colluding to deceive this Court or plaintiff. Indeed, at no time during argument of the dismissal motion, with the proposed allegations at hand, did plaintiff’s counsel remotely suggest that there was collusion or deception present. Rather, I based my decision and order dismissing the counterclaims on the fact that defendants failed to establish prima facie their counterclaims. I did not ascribe any findings to defendants’ failure to call Betty Weg as a trial witness. Nor was there any factual basis for me to do so. In the end, whether to call her or not was a trial strategy decision to be made by defendants’ counsel. ”

This Fourth Department Case has been up and down on appeal and now heads back to the trial court.  Rich Prods. Corp. v Kenyon & Kenyon, LLP  2015 NY Slip Op 04012  Decided on May 8, 2015  Appellate Division, Fourth Department  is the story of an invention by a huge multi-national food company (think Coffee-Rich).  It has a new pourable dessert.  How about South America?

“Memorandum: In this legal malpractice and breach of contract action, plaintiff appeals and defendant cross-appeals from an order that granted in part defendant’s motion for summary judgment and dismissed the first, second and fourth causes of action, and granted that part of plaintiff’s cross motion for partial summary judgment on liability with respect to the third cause of action. Plaintiff retained defendant to file and prosecute domestic and international patent applications for its invention of a nondairy pourable dessert product (hereafter, invention). Mexican authorities issued a patent for plaintiff’s invention, but a Mexican competitor successfully obtained its invalidation seven years after issuance on the ground that the application was not filed within 30 months of the priority date, a decision that was upheld on appeal. Although defendant had also applied for a patent for plaintiff’s invention in Colombia with the assistance of local counsel, the application was denied. Plaintiff commenced this action, asserting in the first and second causes of action of the amended complaint that defendant committed malpractice by “carelessly failing to timely file the Mexican national phase application of the invention” and breached its contract with plaintiff by “failing to timely file the Mexican national phase application.” Plaintiff asserted in the third and fourth causes of action that defendant committed malpractice by “carelessly failing to file the proper documents in Colombia . . . and carelessly failing to timely file the additional required documents in Colombia,” and that defendant breached its contract with plaintiff by “failing to file the proper documents in Colombia, and failing to timely file the additional required documents in Colombia.”

Contrary to plaintiff’s contention, Supreme Court properly granted defendant’s motion with respect to the first cause of action because the record establishes that defendant did not commit legal malpractice at the time of the representation. The patent was cancelled seven years after it was issued due to a retroactive change in Mexican law, and it is well settled that an attorney’s representation is “measured at the time of representation” (Darby & Darby v VSI Intl., 95 NY2d 308, 313). In support of its motion, defendant submitted the affidavit of an expert on Mexican patent law establishing that the application was timely when it was filed. We conclude that plaintiff failed to raise a triable issue of fact in opposition to that part of defendant’s motion (see generally Zuckerman v City of New York, 49 NY2d 557, 562).

We further conclude that the court properly granted defendant’s motion with respect to the second cause of action, for breach of contract, because it was duplicative of the malpractice cause of action (see Long v Cellino & Barnes, P.C., 59 AD3d 1062, 1062). We likewise conclude that the court properly denied plaintiff’s motion for leave to serve a second amended complaint, because plaintiff sought only to add duplicative claims (see generally Matter of HSBC Bank U.S.A. [Littleton], 70 AD3d 1324, 1325, lv denied 14 NY3d 710).

We agree with defendant on its cross appeal, however, that the court erred in granting that part of plaintiff’s cross motion for partial summary judgment on liability on the third cause of action. Plaintiff failed to meet its initial burden with respect to that part of the cross motion, inasmuch as plaintiff failed to submit an affidavit from an expert on Colombian patent law concerning the interpretation of the Colombian legal documents and laws (see Sea Trade Mar. Corp. v Coutsodontis, 111 AD3d 483, 484-485; Warin v Wildenstein & Co., 297 AD2d 214, 215; Jann v Cassidy, 265 AD2d 873, 874-875). We therefore modify the order accordingly.”

Last week we discussed two 2d Department decisions on the issue of settlement and a subsequent legal malpractice case.  Today, a new decision from the Third Department.  Schrowang v Biscone   2015 NY Slip Op 03910   Decided on May 7, 2015  Appellate Division, Third Department brings up a familiar trope in matrimonial law.  Attorneys are paid by the hour and work diligently or not so intelligently during the discovery phase of the case.  The wife gets, or does not get pendente lite  support during this phase of the litigation.  Then, as if it were a surprise, comes the TRIAL!   Often, the attorney is less than admirably prepared, and has not obtained the proofs of husband’s assets for trial. So, the parties are often faced with a “settle or I quit!” scenario, or with a demand for $10 or $20 Thousand, or even more, again with the threat of quitting just before trial.  Courts accelerate this problem by letting divorce attorneys off the case just before trial.

In Schrowang the result is unusual. The legal malpractice is not dismissed.  “Plaintiff retained defendant to represent her in a divorce action. On July 25, 2012, the day the trial was scheduled to begin, plaintiff and her husband signed a settlement agreement wherein, among other things, plaintiff agreed to vacate the marital residence and list the property for sale within 90 days. In September 2013, plaintiff commenced this legal malpractice action alleging that defendant failed to take steps to enforce a temporary order of protection and automatic orders pursuant to Domestic Relations Law § 236, did not prepare for trial, and that he instead “browbeat[]” plaintiff into signing the agreement.

Following joinder of issue, defendant moved for dismissal of the legal malpractice action pursuant to CPLR 3212, alleging that plaintiff failed to state a cause of action pursuant to CPLR 3211 (a) (1) (7). Plaintiff moved for partial summary judgment on liability. Supreme Court denied both motions, prompting this appeal by defendant.

A viable cause of action for legal malpractice exists where a plaintiff demonstrates “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 [the] plaintiff to sustain actual and ascertainable damages” (Arnold v Devane, 123 AD3d 1202, 1203-1204 [2014] [internal quotation marks and citation omitted]; see Hyman v Schwartz, 114 AD3d 1110, 1112 [2014], lv dismissed 24 NY3d 930 [2014]). Here, plaintiff alleged that during [*2]the pendency of the divorce action, she informed defendant that her husband had removed her name from their joint checking account, took more than $100,000 from his retirement account, removed marital assets worth approximately $75,000 from the marital residence,[FN1] transferred title of their vehicle to his name only and engaged in certain conduct in violation of a temporary order of protection. Further, according to plaintiff, defendant told her that he planned to have three people testify at the trial, but she learned the day before the scheduled trial date that defendant had not served trial subpoenas on these individuals. Plaintiff further alleged that, because he was not prepared on the day of trial, defendant negotiated a separation agreement with her husband’s counsel without explaining it to her and without her consent. As defendant concedes, plaintiff told defendant in advance of the trial that her priority was to remain in the marital residence, where she lived with her teenaged daughter and her elderly, infirm mother. Nonetheless, on the day of trial defendant told plaintiff that if she did not sign the agreement, the trial court would force her to vacate the marital residence within 10 days. Plaintiff acknowledges that she signed the agreement, then left the courthouse because defendant told her that it was closing for lunch and, when she returned, she was advised that her case had been called and the separation agreement had been placed on the record in her absence.”

“Here, as defendant has not submitted any expert evidence with regard to whether the services before us provided to plaintiff met the applicable standard of care, “the issue distills to whether defendant met his threshold burden as to the element of either proximate cause or damages” (Arnold v Devane, 123 AD3d at 1204 [2014]). We disagree with defendant’s argument that plaintiff cannot establish either of these elements because she settled the underlying divorce action. Where, as here, the underlying claim is resolved by agreement, this element may be established by evidence that the “settlement . . . was effectively compelled by the mistakes of counsel” (Marchell v Littman, 107 AD3d 1082, 1083 [2013], lv denied 22 NY3d 856 [2013] [internal quotation marks and citations omitted]; see Lattimore v Bergman, 224 AD2d 497 [1996]). While defendant insisted that he negotiated the “best terms” possible, he fails to explain whether or to what extent defendant was familiar with the value of the marital property, whether he investigated plaintiff’s complaints that the husband had taken substantial marital assets in violation of Domestic Relations Law § 236, or whether he was prepared to present any evidence at trial with respect to the marital property on his client’s behalf. Rather, defendant cites the trial judge’s schedule and observations with regard to the marital residence and plaintiff’s “hyster[ia]” as the reason why he encouraged his client to settle the action on the terms that he negotiated.”