It seems that everyone was in on the Barnie Madoff delusion, including  Unions in Upstate New York.  How the IBEW got involved with Madoff is not stated.  However, they lost enough money to sue their CPAs.  In Board of Trustees of Ibew Local 43 v D’Arcangelo & Co., LLP
2015 NY Slip Op 00113  Decided on January 2, 2015  Appellate Division, Fourth Department the court discusses accounting negligence standards and continuous representation. 

""Accounting malpractice or professional negligence contemplates a failure to exercise due care and proof of a material deviation from the recognized and accepted professional standards for accountants and auditors, generally measured by [generally accepted accounting principles] and [generally accepted auditing standards (GAAS)] promulgated by the American Institute of Certified Public Accountants, which proximately causes damage to plaintiff" (Cumis Ins. Socy. v Tooke, 293 AD2d 794, 797-798; see Berg v Eisner LLP, 94 AD3d 496, 496). Here, plaintiff sufficiently alleged that defendant committed malpractice in not adhering to GAAS by, inter alia, failing to obtain a SAS 70 report, and that defendant’s negligence proximately caused plaintiff to sustain damages (see Sacher v Beacon Assoc. Mgt. Corp., 114 AD3d 655, 657). Although defendant contends that GAAS did not require it to obtain a SAS 70 report, it did not submit any evidence establishing that fact in support of its motion (see generally C.P. Ward, Inc. v Deloitte & Touche LLP, 74 AD3d 1828, 1829-1830; Cumis Ins. Socy., 293 AD2d at 798), and [*2]we disagree with the court that such a determination could be made as a matter of law in the absence of such evidence (see Berg, 94 AD3d at 496). With respect to proximate cause, "[a]s a general rule, issues of proximate cause[, including superceding cause,] are for the trier of fact" (Hahn v Tops Mkts., LLC, 94 AD3d 1546, 1548 [internal quotation marks omitted], citing Derdiarian v Felix Contr. Corp., 51 NY2d 308, 312, rearg denied 52 NY2d 784; see Bachmann, Schwartz & Abramson v Advance Intl., 251 AD2d 252, 253), and we see no basis to depart from that general rule in this case (see Sacher, 114 AD3d at 657). Plaintiff alleged that defendant should have obtained the SAS 70 report to confirm the existence and valuation of the funds’ investments. Plaintiff further alleged that, had defendant done so, it would have discovered that it could not confirm the existence of those securities, and plaintiff could have redeemed its investments.

As an alternative ground for affirmance (see generally Parochial Bus. Sys. v Board of Educ. of City of N.Y., 60 NY2d 539, 545-546; Hyatt v Young, 117 AD3d 1420, 1421; Summers v City of Rochester, 60 AD3d 1271, 1273), we agree with defendant that the third through sixth causes of action should be dismissed as duplicative of the professional malpractice cause of action, including the causes of action for fraud (see Long v Cellino & Barnes, P.C., 59 AD3d 1062, 1062), and breach of fiduciary duty (see Matter of HSBC Bank U.S.A. [Littleton], 70 AD3d 1324, 1325, lv denied 14 NY3d 710; Dischiavi v Calli [appeal No. 2], 68 AD3d 1691, 1693). Those causes of action make the same allegations of wrongdoing as the professional malpractice cause of action and do not seek any different damages. The second cause of action for breach of contract was already dismissed by a federal court as duplicative of the professional malpractice cause of action, and plaintiff does not dispute that collateral estoppel bars that cause of action. We reject defendant’s contention, however, that the professional malpractice cause of action, to the extent that it relies on the 2007 audit report, should be dismissed as time-barred. We conclude that plaintiff sufficiently pleaded that the continuous representation doctrine applies to toll the statute of limitations with respect to the 2007 audit report (see Symbol Tech., Inc. v Deloitte & Touche, LLP, 69 AD3d 191, 195-196)."

A client is free to sue his professional, whether it be an attorney, an accountant or even a doctor.  But, if the client has "dirty hands" or has participated in some untoward act, he may be blocked from pursuing the case.  This is the principal of "in pari delicto."

In an accounting setting, Schwartz v Leaf, Salzman, Manganelli, Pfiel, & Tendler, LLP  2014 NY Slip Op 08823  Decided on December 17, 2014  Appellate Division, Second Department  is an example of the rule and an exception.  Where an agent engages in wrongdoing, that misconduct may be attributed to the principal.  Sometimes not. 

"The Supreme Court properly denied that branch of the defendants’ motion which was to dismiss the accounting malpractice cause of action pursuant to CPLR 3211(a)(1). The defendants contend that that cause of action is barred by the doctrine of in pari delicto, "which mandates that the courts will not intercede to resolve a dispute between two wrongdoers" (Kirschner v KPMG LLP, 15 NY3d 446, 464). However, the adverse interest exception to the doctrine of in pari delicto provides that "when an agent is engaged in a scheme to defraud his principal, either for his own benefit or that of a third person, the presumption that knowledge held by the agent was disclosed to the principal fails because he cannot be presumed to have disclosed that which would expose and defeat his fraudulent purpose" (Center v Hampton Affiliates, 66 NY2d 782, 784). Here, the documentary evidence submitted by the defendants did not conclusively foreclose the application of the adverse interest exception to the in pari delicto defense (see Symbol Tech., Inc. v Deloitte & Touche, LLP, 69 AD3d at 196-199; compare Chaikovska v Ernst & Young, LLP, 78 AD3d 1661, 1662-1664)."

The legal principals are straightforward, and the prose is cool and scholarly, but the subtext to this legal malpractice case is heartbreaking.  Parent against child; economic interests tearing apart families. 

Take a look at Cusimano v Wilson, Elser, Moskowitz, Edelman & Dicker LLP   2014 NY Slip Op 04428 [118 AD3d 542]  June 17, 2014   Appellate Division, First Department

"Plaintiff failed to allege facts that would satisfy the proximate cause element, namely, that "but-for" defendants’ alleged inadequate and ineffective representation of her in the underlying arbitration, she would have succeeded in demonstrating that her parents lacked an ownership interest in a contested family asset (see Lieblich v Pruzan, 104 AD3d 462 [1st Dept 2013]). Plaintiff stated that if defendants had introduced her parents’ personal income tax returns in the underlying arbitration proceeding, the arbitration panel would have had no choice but to consider them, credit their contents, and hold that the information contained therein (i.e., that the parents allegedly made no claim of an ownership interest in the contested family asset) was binding against the parents in accordance with the tax estoppel doctrine. The contention that mere submission of the parents’ personal income tax filings in the arbitration proceeding would necessarily have altered the arbitration panel’s determination regarding the parents’ ownership interest in the subject asset is grounded in speculation, and thus, insufficient to sustain a claim for legal malpractice (see e.g. AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 435 [2007]; Pellegrino v File, 291 AD2d 60, 64 [1st Dept 2002])."

Plaintiff lacked two elements of a successful legal malpractice case.  The two missing elements were  the "but for" aspect which requires that "but for" the mistake of the attorney there would have been a better outcome for the estate.  The second missing element was ascertainable damages.  Here, the estate had to prove that there would have been identifiable damages in the future.

Estate of Feder v Winne, Banta, Hetherington, Basralian & Kahn, P.C.  2014 NY Slip Op 03593  117 AD3d 541] May 15, 2014 Appellate Division, First Department held that dismissal was warranted. 

"The motion court properly dismissed the legal malpractice claim. Plaintiff, the wife of decedent, failed to adequately allege that defendant acted negligently in advising her to pay the estate tax out of decedent’s estate, rather than making a qualified terminable interest property (QTIP) election (see Internal Revenue Code [26 USC] § 2056 [b] [7]). Such a QTIP election would have deferred payment of any estate taxes until plaintiff’s death, at which time they would be paid out of her estate. Defendant explained that while a QTIP election might have resulted in an immediate tax savings during plaintiff’s lifetime, it could have left significantly less to the residuary beneficiaries of decedent’s estate. Defendant’s legal obligation was to the estate, not to plaintiff. Thus, as the motion court concluded, defendant selected one among several reasonable courses of action (see Rosner v Paley, 65 NY2d 736, 738 [1985]; Rodriguez v Lipsig, Shapey, Manus & Moverman, P.C., 81 AD3d 551, 552 [1st Dept 2011]). Indeed, another firm with whom plaintiff consulted stated that defendant’s analysis was correct. To the extent plaintiff argues that defendant failed to consider other alternatives, such as gifts or other trusts, those options would have contradicted the decedent’s apparent testamentary intent to retain control and distribute the remainder of his assets to his children upon plaintiff’s death.

The court also correctly concluded that plaintiff failed to adequately allege that defendant’s conduct proximately caused any ascertainable damages. Plaintiff’s damages claim was based largely on speculation that the estate tax payment could have been avoided in the future, which, as plaintiff itself acknowledged in her motion papers, depended on too many [*2]uncertainties, including future tax laws, tax rates, and the future value of the trust property (see e.g. Brooks v Lewin, 21 AD3d 731, 734-735 [1st Dept 2005], lv denied 6 NY3d 713 [2006])."

Judiciary Law 487 is the ancient attorney deceit law.  It arose just years after the Magna Carta.  During the period between 1267 and today, attorneys have constantly been negotiating cases for their clients.  Here, in Wailes v Tel Networks USA, LLC  2014 NY Slip Op 02861 [116 AD3d 625]
April 24, 2014  Appellate Division, First Department  we see that there is absolute immunity for settlement negotiations, which can never be the basis of a JL 487 claim.

"The allegations of Snyder’s conduct in his representation of defendant Tel Networks USA, LLC during settlement discussions with plaintiff, which plaintiff characterizes as "overzealous and intimidating," do not state a cause of action under Judiciary Law § 487. The complaint alleges neither an intent to deceive nor "a chronic and extreme pattern of legal delinquency" that caused plaintiff a loss (Kaminsky v Herrick, Feinstein LLP, 59 AD3d 1, 13 [1st Dept 2008] [internal quotation marks omitted], lv denied 12 NY3d 715 [2009] Nason v Fisher, 36 AD3d 486, 487 [1st Dept 2007]). Moreover, the only allegations of wrongdoing refer to a settlement discussion had after Tel Networks commenced a legal proceeding, and that communication is absolutely privileged (see Wiener v Weintraub, 22 NY2d 330 [1968] Mosesson v Jacob D. Fuchsberg Law Firm, 257 AD2d 381, 382 [1st Dept 1999], lv denied 93 NY2d 808 [1999]). Concur—Sweeny, J.P., Acosta, Saxe, Manzanet-Daniels and Clark, JJ."

There are a lot of law firms that take on medical malpractice cases.  In the past, medical malpractice litigation was more lucrative than it is today.  At one time, attorneys were permitted a 33.3% fee. Now, it is on a lower sliding scale.  At one time physicians were willing to testify at trial for a more reasonable fee.  Today, some expert fees are astronomical.  This has seemingly led to a situation in which med mal lawfirms take on cases, look at them for a while, do the discovery, and then when the case will not settle at the end of depositions, dump the case.  Often, they say that they were unable to "find" an expert.  Sometimes that means that they were unwilling to utilize an expert.

In Snyder v Brown Chiari, LLP  2014 NY Slip Op 02363 [116 AD3d 1116]  April 3, 2014  Appellate Division, Third Department the law firm tried to be relieved near the end of litigation, and failed.  They said that no expert could be found.  The doctors then successfully move to dismiss.  Was this legal malpractice?

"Plaintiff stated a cause of action for legal malpractice. Elements of such a cause of action include "establish[ing] both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff, and that the plaintiff would have succeeded on the merits of the underlying action ‘but for’ the attorney’s negligence" (AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007] [citations omitted] accord Alaimo v McGeorge, 69 AD3d 1032, 1034 [2010]). In the procedural context of a motion to dismiss for failure to state a cause of action, "the court must afford the pleadings a liberal construction, take the allegations of the complaint as true and provide plaintiff the benefit of every possible inference" (EBC I, Inc. v Goldman, Sachs & Co., 5 NY3d 11, 19 [2005]). "Whether the plaintiff will ultimately be successful in establishing those allegations is not part of the calculus" (Landon v Kroll Lab. Specialists, Inc., 22 NY3d 1, 6 [2013] [internal quotation marks and citations omitted]) and "a court may freely consider affidavits submitted by the plaintiff to remedy any defects in the complaint" (Leon v Martinez, 84 NY2d 83, 88 [1994]).

Here, plaintiff submitted, among other things, an affidavit and attached memorandum from a physician licensed in New York. This physician had been consulted by defendants in 2003, and he produced his memorandum from such time which set forth in ample detail for purposes of opposing a motion to dismiss that plaintiff’s surgeon deviated from appropriate care. His affidavit reaffirmed that he believed there was malpractice in the treatment of plaintiff by her surgeon and, further, stated that he had been available to testify at the scheduled 2007 trial, but was never contacted by defendants. Such proof, together with the detailed allegations in the complaint, state a cause of action.

Defendants urge as an alternative ground for affirmance the collateral estoppel argument that they unsuccessfully asserted before Supreme Court. They premise this argument upon the fact that Supreme Court permitted their lien on plaintiff’s file and the line of cases which hold that "where a client does not prevail in an action brought by counsel for the value of professional services, a subsequent action by the client for malpractice is barred by collateral estoppel" (Thruway Invs. v O’Connell & Aronowitz, 3 AD3d 674, 676 [2004] see e.g. Zito v Fischbein Badillo Wagner Harding, 80 AD3d 520, 521 [2011]). Here, at the appearance regarding the lien on the file, plaintiff was, as stated by Supreme Court in its decision, "expressly prevented by [Supreme] Court from asserting any claims relative to the actual services performed by [d]efendants, and strictly limited to a discussion of the accuracy of the amount of the disbursements made by [d]efendants on her behalf." We agree with Supreme Court’s characterization of the lien dispute and, under such circumstances, further agree with Supreme Court that plaintiff did not previously have a full and fair opportunity to litigate the issue of whether defendants were negligent so as to support invoking collateral estoppel (see generally Buechel v Bain, 97 NY2d 295, 303-304 [2001], cert denied 535 US 1096 [2002]). The remaining arguments, to the extent properly before us, are academic or without merit.

"

Legal malpractice cases sometimes face a conundrum.  The three year statute of limitations is approaching, yet the case is not finished.  Attorney 1 (the potential target) is out, and Attorney 2 is continuing the case.  What does the careful plaintiff do? 

One solution (which requires the court agree) is to start the case and then stay the proceedings.  Another solution is to start the case and then conditionally dismiss without prejudice.  The worst solution is to start the case, proceed to trial and lose on the basis that there are not yet any damages.

So, Abraham v Viruet  2015 NY Slip Op 50005(U)  Decided on January 6, 2015  Appellate Term, First Department is an example of the third possiblity. 

"Giving due deference to the trial court’s findings of fact and credibility, we sustain the judgment awarded in favor of defendant dismissing plaintiff’s action insofar as it sounds in legal malpractice. Plaintiff’s trial showing, unaccompanied by any expert opinion testimony, failed to establish that the defendant-attorney’s representation of plaintiff in the two underlying matters "fell below the ordinary and reasonable skill and knowledge commonly possessed by a member of the [legal] profession" (see Fidler v Sullivan, 93 AD2d 964 [1983]). Moreover, in view of the continued pendency of one of the underlying actions, plaintiff did not and cannot establish any actual damages attributable to the malpractice alleged in connection with that matter (see Kahn Jewelry Corp v Rosenfeld, 295 AD2d 261 [2002])."

Privity in legal malpractice law is one of the major stumbling blocks.  People definitely suffer from the acts of attorneys, yet may not be in a direct contractual relationship with the attiring.  Executors and estates are one prime example, and in the past (before Schneider v. Finmann)  had almost no ability to sue the attorneys. 

Betz v Blatt  2014 NY Slip Op 02554 [116 AD3d 813]  April 16, 2014  Appellate Division, Second Department is a prime example. 

"This action, inter alia, to recover damages for legal malpractice, challenges the work performed by attorneys and law firms who represented an executor of a decedent’s estate, who was removed for cause. In his will, the decedent left the bulk of his estate to his daughters, the plaintiff [*2]and Christina Carbone-Lopez. The decedent also named his brother, Michaelangelo Carbone (hereinafter Carbone), as executor. After contested probate proceedings, including a contested accounting, Carbone’s letters testamentary were suspended and he was surcharged in excess of $1,025,000 for his looting and mismanagement of the estate. On prior appeals from orders of the Surrogate’s Court, this Court upheld those sanctions (see Matter of Carbone, 101 AD3d 866 [2012]). The plaintiff was substituted as executor.

In her capacity as executor, the plaintiff commenced this action alleging, inter alia, legal malpractice by the defendants George A. Sirignano, Jr., Enea, Scanlan & Sirignano, LLP (hereinafter together the Sirignano defendants), Arnold W. Blatt, and Anthony J. Pieragostini. Each of the defendants represented Carbone in the contested probate proceedings.

"Contrary to the Supreme Court’s factual finding, the Sirignano defendants’ retainer agreement with Carbone does not contain the phrase "administration of the estate." Both the retainer agreement and the facts as pleaded in the complaint indicate that the Sirignano defendants were retained solely to defend Carbone in the contested accounting proceeding and related matters, and were not retained to administrate the estate. Therefore, the Supreme Court erred in finding that the Sirignano defendants "under[took] a duty of undivided loyalty to the Estate and its beneficiaries." Since the documentary evidence demonstrates that the Sirignano defendants were not in privity with the estate, and because the plaintiff failed to plead specific facts tending to show that the Sirignano defendants engaged in fraud or colluded with Carbone, the plaintiff did not assert a viable cause of action against them on the estate’s behalf to recover damages for legal malpractice. Accordingly, the eleventh cause of action, which alleged legal malpractice by the Sirignano defendants, must be dismissed pursuant to CPLR 3211 (a) (see Keness v Feldman, Kramer & Monaco, P.C., 105 AD3d at 813; Jacobs v Kay, 50 AD3d at 526-527; Chinello v Nixon, Hargrave, Devans & Doyle, LLP, 15 AD3d at 895; Conti v Polizzotto, 243 AD2d at 672). For the same reasons, the twelfth cause of action, which alleged breach of fiduciary duty by the Sirignano defendants, was properly dismissed.

This Court has held that "an attorney represents the administrators individually and not the estate itself" (Matter of Hof, 102 AD2d 591, 593 [1984], citing Matter of Schrauth, 249 App Div 847, 847 [1937], and Matter of Scanlon, 2 Misc 2d 65, 69 [Sur Ct, Kings County 1956] see Matter of Della Chiesa, 23 AD2d 562 [1965])."

 

Judiciary Law 487 does not have special pleading requirements as does Fraud.  It has not in the past been subject to CPLR 3016.  It is not a species of Fraud…it is the common law.  However, courts are general not friendly to JL 487 and find a plethora of ways to dismiss.  Betz v Blatt
2014 NY Slip Op 02554 [116 AD3d 813]  April 16, 2014  Appellate Division, Second Department is one such example. 

It’s an estate matter in which the first executor looted the estate and suffered a surcharge of more than $1 million.  When executor 2 comes into play, a legal malpractice case is started against the attorney for executor 1.  It falters.  The JL 487 claim is dismissed on pleading grounds.  Its the 15th cause of action.

"The Supreme Court properly dismissed the second and seventh causes of action, which alleged breach of fiduciary duty, the third, eighth, and thirteenth causes of action, which alleged fraud and breach of trust, and the fourth and ninth causes of action, which sought disgorgement and restitution of attorneys’ fees, which were all based on the same facts as the causes of action to recover damages for legal malpractice, and did not allege distinct causes of action (see Putnam County Temple & Jewish Ctr., Inc. v Rhinebeck Sav. Bank, 87 AD3d 1118, 1120 [2011] Weiss v Manfredi, 83 NY2d 974, 977 [1994] Financial Servs. Veh. Trust v Saad, 72 AD3d 1019, 1021 [2010] Mahler v Campagna, 60 AD3d 1009, 1012 [2009]). Likewise, the court properly dismissed the third, fifth, eighth, tenth, thirteenth, and fifteenth causes of action, since they were not pleaded with the requisite degree of particularity (see CPLR 3016 [b] Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 [2009] Parekh v Cain, 96 AD3d 812, 816-817 [2012] Putnam County Temple & Jewish Ctr., Inc. v Rhinebeck Sav. Bank, 87 AD3d at 1120)."

 

 

Defendants took a very aggressive approach to a legal malpractice case, and in a turnaround, the Court awarded summary judgment to plaintiff.  One wonders what would have happened if no motion was made in the first place.

Walker v Kramer   2014 NY Slip Op 33372(U)  December 22, 2014  Supreme Court, Suffolk  County  Docket Number: 5219/07  Judge: Paul J. Baisley is a discussion of the ";law of the case," how Appellate Division decisions affect Supreme Court decision making, and what the "but for" principal of legal malpractice means.

"Plaintiff commenced this action to recover damages she allegedly suffered as a result of
defendants’ legal malpractice. By an order of this Court dated December 1 1,2007, the complaint was dismissed in its entirety as against defendants Debra L. Rubin, Esq., Gayle Rosenblum, Esq.,
Rubin and Rosenblum, PLLC, and Kramer & Rubin, PLLC (Walker v Kramer, Sup Ct, Suffolk
County, December 1 1,2007, Baisley, J., Index No. 52 19/07). Although the order dismissed the
claims against Lynne Adair Kramer, Esq. and Kramer & Rabinowitz, LLC, pursuant to CPLR
R. 321 1 (a)( 1) and (7), the Appellate Division modified the order, reinstating the legal malpractice
claims against them (Walker v Kramer, 63 AD3d 723,880 NYS2d 677 [2d Dept 20091). In its
December 1 1,2007 decision, this Court denied plaintiffs application for summary judgment,
indicating that it was premature as no answers had been filed. Discovery having been completed,
and a note of issue having been filed, defendants now move for summary judgment dismissing the
complaint. They maintain that plaintiff has not sustained any damages, thus she cannot prove her
claim for legal malpractice. Plaintiff opposes their motions and interposes a cross-motion, asking
the Court to grant leave to renew her prior summary judgment motion and upon such renewal
grant summary judgment in her favor. She claims that the Appellate Division decision (id.)
constitutes the “law of the case” as it refers to liability by reason of defendants’ legal malpractice.
On May 14,2003, by written agreement, plaintiff retained the law firm of Wachtel &
Rabinowitz to represent her in a divorce action she commenced against her former husband.
Some eleven days thereafter, Gregory Rabinowitz, Esq. merged his law practice with that of
Lynne Kramer, Esq. and formed Kramer & Rabinowitz, LLC which represented plaintiff until
March 24,2006. On April 4,2004 plaintiff entered into a stipulation settling her matrimonial
action, which was incorporated but not merged into a judgment of divorce dated November 18,
2004 and filed with the County Clerk on December 7,2004. Pertinent portions of the stipulation
of settlement stated:

Within ten (10) days from the execution of the within Stipulation, the
plaintiffs attorney shall prepare all of the necessary documents for the
defendant, to transfer his right, title and interest in and to the premises to
the Plaintiff and Defendant as “joint tenants in common” by Bargain and
Sale Deed With Covenants Against Grantors Acts, which deed and
transfer papers shall be immediately filed at the defendant’s sole cost and
expense. Plaintiffs attorney shall also prepare a Bargain and Sale Deed
With Covenants Against Grantors Acts and any additionally required
transfer documents necessary to transfer the residence from the parties as
joint tenants in common to the defendant alone, which will be executed by
the parties and held by Plaintiffs attorneys in escrow subject to the further
terms and provisions hereinafter set forth. Within 5 days from execution of
this Stipulation Defendant shall pay Plaintiffs attorneys $500 to prepare
the above deeds and shall thereafter pay the filing fees within 7 days of
presentment of the title bill [ .] "

"The parties do not dispute that plaintiffs former husband paid defendant Kramer & Rabinowitz,
LLC the $500.00 legal fee required of him for the preparation of the deeds for the marital residence as mandated by the stipulation. However, also undisputed is the fact that no deed was ever  prepared or filed by defendant Kramer & Rabinowitz, LLC in connection therewith. It appears that plaintiff’s former husband refinanced the marital premises shortly after the parties were divorced, using the proceeds to satisfy an existing mortgage and retaining approximately $800,000.00 for his own devices. Plaintiff alleges that she never received her $300,000.00 tax free equitable distribution payment from her husband and that the failure of the defendants to secure her payment by preparing and recording a deed in to her as stated in the stipulation of settlement amounted to legal malpractice for which she should be compensated."

"Although plaintiff may have received more than was originally anticipated by way of maintenance and carrying charges, there is no question but that she did not receive the equitable share of marital property to which she was entitled. Defendants’ arguments that plaintiff suffered no  damages because she was paid a “windfall” of maintenance and carrying charges is unpersuasive. Moreover, such an argument is specious and speculative. Inasmuch as plaintiff was entitled to receive a “lump sum” payment of equitable distribution, the parties could just as easily speculate that she would have invested that money and made “millions” in a business or other investment. Defendants’ failure to secure that payment cannot be set aside by their claims of “offset.” The fact that the stipulation provided for longer duration maintenance and for the payment of carrying charges by plaintiffs former husband in the event he failed to pay the “lump sum” equitable distribution award was not in lieu of the equitable distribution, but was an inducement for him to make the payment in a timely fashion. Thus, defendants failed to prove their claim that plaintiff did not sustain any damages as a result of their failure to secure the equitable distribution payment by preparing the deed as provided by the stipulation of settlement, and summary judgment dismissing the complaint is denied. "

"The Appellate Division found that there was insufficient documentary evidence submitted by defendants in support of their earlier motion to dismiss, and that the facts in the complaint stated a cause of action for legal malpractice. The Appellate Division did not, however, determine the merits of the legal malpractice claim. Thus, the doctrine of res judicata is inapplicable and does not bind this Court (see Wilson v New York City Hous. Auth., supra). However, inasmuch as plaintiff has proven through her submissions that “but for” defendants’ failure to prepare and record a deed securing her equitable distribution award, she would have been able to receive. her award through a sale of the premises prior to her former husband’s encumbering the marital residence with mortgages in excess of its value, she is entitled to summary judgment in her favor and her motion is granted. "