Some years ago the Legislature overruled the Court of Appeals, and passed CPLR 214(6). That statute was interpreted to say that all claims against an attorney (some other professionals) were subject to a 3 year statute, whether the claim was made in negligence or contract.

Here, in Walter v Castrataro   2012 NY Slip Op 02676   Decided on April 10, 2012   Appellate Division, Second Department   we see a plaintiff unsuccessfully attempting to get the benefit of a typical 6 year statute for breach of contract.

"On April 16, 2003, the plaintiff signed a retainer agreement, wherein the defendant agreed to represent her in a matrimonial action. By letter dated July 1, 2003, the plaintiff terminated the defendant’s representation. On June 11, 2009, the plaintiff commenced this action, alleging in [*2]her complaint that the defendant "negligently failed to represent the Plaintiff and breached her duties" and "[a]s a result of the Defendant’s breach of contract the Plaintiff has suffered substantial damages[.]" The defendant moved, inter alia, for summary judgment dismissing the complaint on the ground that the complaint sounded in legal malpractice and, thus, was barred by the applicable three-year statute of limitations (see CPLR 214[6]). In her opposing affidavit, the plaintiff stated that she "may have inadvertently misused language on the Summons and Complaint. However, the object of the said application served upon Defendant asserts breach of contract verbatim and notably, Plaintiff never uses the term Legal malpractice" (emphasis in original). In her affidavit, the plaintiff alleged numerous "breaches" by the defendant in connection with the underlying matrimonial action, including a failure to file an application for pendente lite support, failure to move to vacate a certain forensic report, and failure to "modify" a certain stipulation. The Supreme Court, among other things, granted that branch of the defendant’s motion which was for summary judgment dismissing the complaint as time-barred.

The complaint is "nothing more than a rephrasing of the claim of malpractice in the language of breach of contract" (Mitschele v Schultz, 36 AD3d 249, 252). The defendant satisfied her initial burden by demonstrating, prima facie, that the complaint sounded in legal malpractice and that the three-year statute of limitations began to run no later than July 1, 2003 (see Sladowski v Casolaro, 84 AD3d 1056, 1057). In opposition, the plaintiff failed to raise a triable issue of fact, e.g., by submitting proof demonstrating that the statute of limitations was tolled by the continuous representation doctrine, or otherwise (see Tsafatinos v Lee David Auerbach, P.C., 80 AD3d 749, 750). Accordingly, the Supreme Court properly concluded that the action, commenced almost six years after the alleged legal malpractice was committed, was barred by CPLR 214(6), and, thus, properly granted that branch of the defendant’s motion which was for summary judgment dismissing the complaint as time-barred. "

The short answer to the question is yes, they do;  the longer answer to the question is that their rights to first amendment protection of speech is very limited, and litigation over those rights will be stringently examined, or better put, subject to strict scrutiny.  In Ruotolo v Mussman & Northey
2012 NY Slip Op 30860(U)  April 3, 2012  Sup Ct, NY County  Docket Number: 109449/2008
Judge: Saliann Scarpulla both plaintiff’s case against the Police Department and his later legal malpractice case against the attorneys are lost.

"Plaintiff Angelo Ruotolo (“Ruotolo”) is a former New York City Police Department (“NYPD”) officer. In June 2003, while still employed with the NYPD, Ruotolo commenced a civil rights action in the United States District Court for the Southern District of New York (“the civil rights action”) against the City of New York and several NYPD supervisors (collectively “the City defendants”). Non-party William Rold (“Rold”) initially represented Ruotolo in the civil rights action. In the civil rights action Ruotolo alleged that the City defendants retaliated against him for writing a report (“the Report”) about the possible health effects of environmental contamination in the 50th precinct, where Ruotolo served as a Command Safety Officer. Ruotolo alleged that after writing the Report, the City defendants arbitrarily denied him time off and overtime, reassigned him repeatedly, and disciplined him for trivial reasons. Ruotolo asserted claims that these retaliation-or.y actions violated the First Amendment and Due Process clauses of the U.S. Constitution, and various state whistle blower laws. "

"In November 2003, the City defendants moved to dismiss Ruotolo’s complaint, arguing that the Report was not protected by the First Amendment because Ruotolo prepared it in his capacity as a public employee, not as a private citizen. On August 25, 2004, Judge Stein denied the City’s motion with respect to the First Amendment and Due Process claims but granted the motion with respect to the state whistle blower claims. Then, in February 2004, the NYPD charged Ruotolo with visiting an out of borough location while on duty, subsequently placed him on modified duty and confiscated his firearms. Ruotolo eventually retired from the NYPD without a permit to carry a firearm as a civilian. Also, by mid-2004 conflicts had arisen between Ruotolo and Rold, his attorney in the civil rights action, and, in May, 2004, Rold withdrew as counsel for Ruotolo. Thereafter, M&N began representing Ruotolo in the civil rights action."

"Before the action could proceed to trial, the United States Supreme Court issued its decision in Garcetti v. Ceballus, 547 U.S. 410 (2006). In Garcetti, the Supreme Court held that the First Amendment does not “protect[] a government employee €from discipline based on speech made pursuant to the employee’s official duties.” 547 [J.S. at 41 3. Thereafter, the City defendants renewed their motion for summary judgment dismissing Ruotolo’s complaint on the grounds that the Report arose from Ruotolo’s official duties as a police officer, and thus was not protected by the First Amendment. In opposition, M&N argued that the amended complaint should in fairness be read to include Ruotolo’s conversation with the PBA attorney, which M&N contended were not pursuant to Ruotolo’s official job duties.
On July 19,2006, Judge Stein granted the City defendants’ motion for summary judgment, holding that Ruotolo prepared the Report pursuant to his official job duties and therefore had no First Amendment claim with respect to the Report. Ruotolo v. City of New York, 2006 U.S. Dist. LEXIS 49903,  (S.D.N.Y. July 19,2006).’ Because Ruotolo had not pled any claim based upon the conversation with the PBA attorney in either the initial or amended complaints, Judge Stein based his dismissal of the civil rights action solely on claims arising from the Report itself. However, Judge Stein noted that even if he had considered Ruotolo’s discussion with the PBA attorney, Ruotolo’s First Amendment claim would fail because that discussion was held pursuant to Ruotolo’s official job duties, which included ‘‘answering questions about safety issues at the
precinct.” Ruotolo v. City of New Yo& 2006 U.S. Dist. LEXIS 49903, “12-13 (S.D.N.Y.
July 19, 2006)"

"Here, defendants have made a prima face showing that Ruotolo would not have prevailed on his First Amendment claim even if defendants had amended the complaint to include Ruotolo’s conversations with the PBA attorney in April, 2000. The First Amendment does not protect public employees from adverse employment decisions based on communications they make pursuant to their official duties, see Weintraub v. Bd, of Educ., 593 F.3d 196, 200-01 (2d Cir. 2010), and defendants have submitted sufficient  evidence to show that Ruotolo’s conversation with the PRA attorney was made pursuant to his official duties."

"Defendants have also shown that Ruotolo would not have succeeded on a Due Process claim based on the City defendants’ deprivation of Ruotolo’s’s firearms. Where a government agency randomly and arbitrarily deprives a citizen of a protected property interest, due process is satisfied if the state provides an adequate post-deprivation remedy. Hellenic Am. Neighborhood Action Comm. v. New York City, 101 F.3d 877, 880 (2d Cir. 1996)."

Legal malpractice cases require that one prove a departure, a proximate cause, that but for the mistake there would have been a better and different outcome and ascertainable damages.  In Angeles v Aronsky   2012 NY Slip Op 30851(U)  April 2, 2012  Sup Ct, NY County  Docket Number: 100091/2009  Judge: Judith J. Gische  we see how a plaintiff avoids summary judgment on a premises security case.

"Plaintiff alleges that, on December 7, 2007, he was assaulted in the lobby of a building (the Building), located at 1745 Caton Avenue, Brooklyn, New York, in which he was a tenant
and that he hired defendant to represent him in prosecuting his claim (the Underlying Claim) (complaint, 1’8 1, 4 ) . Plaintiff contends that defendant never commenced an action against the
Building’s owner, defendant did not conduct an adequate investigation of the circumstances of the incident, and he was induced by defendant to settle the Underlying Claim against the Building’s owner for $8500, although this was inadequate compensation in light of the severity of his injuries which included having both his arms broken, a broken Jaw and broken ribs (id., 77 10, 17-18).

Defendant asserts that plaintiff voluntarily agreed to the settlement of the Underlying claim, that the Underlying Claim had significant liability problems, warranting a low settlement amount, since plaintiff stated that the door lock leading into the lobby area of the Building was in working order on the day of the incident, that the alleged assailants were unknown and that there were no prior similar incidents in the Building (defendant affidavit, g l 14, S – 6 ) .

Applying the above mentioned legal principles to this motion, defendant’s motion for summary judgment must be denied. Defendant states that a successful result in the Underlying Claim could not be established since plaintiff stated that the door locks were functioning properly on the day of the incident and plaintiff did not know who attacked him (plaintiff EBT, at 17, 19). Plaintiff has, however, presented evidence of accessibility to the Buildings’through a side entrance and that
three men with baseball bats were seen leaving the Building around the time of the alleged assault on plaintiff (Sosa BET, at 52, 54, 59; Luna EBT, at 20-21). since the Court must view the evidence in the light most favorable to plaintiff on this motion (Branham v Loews Orpheum Cinemas, Inc., 8 NY3d 931, 932 [2007), plaintiff has raised a factual issue as to the accessibility to the Building through  the unlocked aide entrance (Burgos, 92 NY2d at 551).

 Plaintiff has also presented evidence of a factual issue as to the adequacy of defendant’s investigation into the circumstances of the Underlying claim since neither defendant nor his investigator went to the Building or spoke with the Building’s superintendent and, accordingly, they did not obtain Information about the aide entrance and its accessibility (defendant EBT, at 51-52). Defendant also failed to seek information as to prior similar incidents in the area which would be relevant to foreseeability (fa. at 5 8 ) .

Judiciary Law 487, one of the oldest statutes in the Anglo-American law remains imprecise and widely available to interpretation.  in Strumwasser v Zeiderman ; 2012 NY Slip Op 30772(U)
March 15, 2012 ;Supreme Court, New York County ; Docket Number: 113524/2010;
Judge: Joan A. Madden we see the Court struggling with the question of whether an unstated "extreme chronicity" need be shown.  The statute does not state this element, and while some courts have grafted it onto JL 487, there seems to be no doctrinal basis for it at all.

"The complaint in this action asserts, inter alia, causes of action against J&C for alleged violations of Judiciary Law  487. In its original decision, the court granted J&C’s motion to dismiss the complaint against it, including the claims for violations of Judiciary Law 487, the subject of this motion. The court based its dismissal of the Judiciary Law  487 claims on plaintiffs failure “to articulate or allege a chronic or extreme pattern of behavior on the part of J&C.” Cohen v Law Off ices of Leonard & Robert Shapiro. 18 AD3d 219,220 ( lst Dept 2005). See also Markand v. Bloom, 4 AD3d 128 (1st Dept 2004) Havell v Islam, 292 AD2d 210 (lst Dept, 2002)

Plaintiff now moves for re argument, asserting that a violation of Judiciary Law  487
does not require a showing of a chronic or extreme pattern of behavior but only an intentional
deceit or collusion by an attorney. J&C opposes the motion, citing case law in  the Appellate Division, First Department supporting the court’s interpretation of Judiciary Law  487 and argues that, in any event, no deceit of the kind required by Judiciary Law 487 has been shown.

Although the statute does not expressly require a pattern of chronic delinquency, in certain instances, the Appellate Division, First Department, has made it a prerequisite to recovery.See Dinhofer v, Medical Liability Mut. Ins. Co. , 92 AD3d 480 ( lst Dept 2012); Nason v. Fisher 36 AD3d 486 (1 Dept 2007), but see, Scarborough v Napoli, Kaiser & Bern,LLP, 63 AD3d 1531 [4th Dept 2009); Izko Sportswear CQ,. Inc, v Flaum. 25 AD3d 534 (2d Dept 2006);Amalfitano v, Rosenberg, 533 F3d 117 (2d Cir 2008).

Here, plaintiff makes no claim of chronic delinquency or a pattern of misconduct. Moreover, plaintiffs’ claims under Judiciary Law  487 fail to allege the type of intentional, egregious conduct required to permit recovery under the statute. Specifically, plaintiffs assertions that J&C did not include a page of plaintiffs own business plan stating that the plan was informational purposes in connection with a motion by plaintiff to be relieved of an appraiser’s fee is insufficient to allege the type of conduct sufficient to provide a basis for a claim under Judiciary Law 487. See Ticketmaster v. Lidsky, 245 AD2d 142 (1“ Dept 1997)  holding that “[a]ssertion of unfounded allegations in a pleading, even if made for improper purposes, does not provide a basis for liability under Judiciary Law 487”); O’CalIaghan v. Sifre, 537 FSupp2d 594, 596 (S.D. N.Y. 2008)(noting that “by confining the reach of [Judiciary Law  487 to intentional egregious misconduct, this rigorous standard affords attorneys wide latitude in the course of litigation to engage in written and oral expression consistent with responsible, vigorous advocacy”); compare Scarboroyd v Napoli, Kaiser & Bern. J.LP, 63 AD3d 1531 (denying summary judgment to attorney where record showed that medical malpractice case was dismissed for failure to file a timely note of issue and defendant attorneys asked client to sign a stipulation of discontinuance informing him he could not prevail on the action but not telling him the reason for the dismissal.

‘Although the Second Circuit noted that the pattern of behavior requirement was not in
the text of Judiciary Law 487, it also acknowledged that New York courts, including the First
Department, have required it in certain instances. Furthermore, in the case before it, the District
Court found a “‘persistent pattern of unethical behavior”’ that “constituted ‘a chronic, extreme
Rosenberg, 428 FSupp2d 196,203 (SDNY 2006), and the only issue before the Second Circuit
was whether an attorney’s attempted, but unsuccessful, deceit violated Judiciary Law  487,
which it certified for the New York Court of Appeals. See Amalfitano v. Rosenberg, 12 NY3d 8
(2009)(holding that an attempted, but unsuccessful, deceit may provide a basis for a claim under
Judiciary Law 487). pattern of legal delinquency.”

Appellate Decisions are always correct, well reasoned, and exquisitely written. Sometimes they are recalled and changed.Landa v Blocker 2011 NY Slip Op 06370 ;  Appellate Division, Second Department is an example of the result of persistence in appellate work.
This case is an attorney fee/legal malpractice matter in which it was alleged that the client "approved" monthly statements. If she approved, then an account was stated and there is little to no defense to the attorney fee issue.

So the Appellate Division found, and so the appeal ended, until appellant’s attorney moved to reargue. Here it was successful,

"ORDERED that the judgment is modified, on the law, by deleting the provision thereof awarding the plaintiff the principal sum of $193,525.40; as so modified, the judgment is affirmed, without costs or disbursements, those branches of the plaintiff’s motion which were for summary judgment on the first cause of action of the amended complaint and to strike the eighth affirmative defense are denied, and the order dated April 13, 2009, is modified accordingly; and it is further

The plaintiff demonstrated his prima facie entitlement to judgment as a matter of law on the first cause of action by tendering invoices for services rendered prior to December 5, 2006, setting forth his hourly rate, the billable hours expended, and the particular services rendered, and establishing that the defendant signed such invoices, failed to timely object to the invoices, and made partial payments thereon (see Landa v Dratch, 45 AD3d 646, 648; Landa v Sullivan, 255 AD2d 295). In opposition, however, the defendant submitted her own affidavit, which was sufficient to raise a triable issue of fact as to whether she acquiesced in the correctness of the invoices (see Interman Indus. Prods. v R.S.M. Electron Power, 37 NY2d 151, 153-154; Rodkinson v Haecker, 248 NY 480, 485). The defendant asserted in her affidavit that she signed the invoices as "approved," not because she actually agreed that the amounts reflected therein were correct, but because she was told that no work would be done on her case unless she signed the invoices. For example, the defendant averred that, during a conference at the plaintiff’s office, the plaintiff produced a number of unsigned billing statements and told the defendant that "the conference was not going to proceed until [she] signed the billing statements." According to the defendant, she signed the billing statements, but "[t]here was no intent on [her] part to accept the billing so that it could never, ever, be challenged in the future."

We note that the plaintiff’s alleged refusal to proceed with his representation of the defendant unless the defendant signed the billing statements "would not constitute duress by reason [*3]of which [the defendant] would be entitled to have the written statement invalidated" (Miller v Storer, 1 AD2d 956, 956, affd 2 NY2d 815). Here, however, the defendant does not seek to invalidate or repudiate either the billing statements or the retainer agreement between the parties. Indeed, unlike the client in Miller, the defendant in this case has not asserted a counterclaim for rescission of any agreement between the parties. Rather, the defendant seeks only to defeat that branch of the plaintiff’s motion which was for summary judgment on his cause of action to recover on an account stated by raising a triable issue of fact as to whether she agreed to or acquiesced in the correctness of the invoices. The facts asserted in the defendant’s affidavit are sufficient to raise a triable issue of fact as to whether her acts of signing the invoices "were, in fact, acquiescence to their correctness" (Ween v Dow, 35 AD3d 58, 62).

The Supreme Court also improperly granted that branch of the plaintiff’s motion which was to strike the eighth affirmative defense alleging that the fees in question were excessive. The plaintiff failed to meet his prima facie burden of establishing his entitlement to judgment as a matter of law in connection with this affirmative defense (see Bomba v Silberfein, 238 AD2d 261). Accordingly, the Supreme Court should have denied that branch of the plaintiff’s motion which was to strike the eighth affirmative defense alleging that the fees in question were excessive, without regard to the sufficiency of the defendant’s opposition papers (see Winegrad v New York Univ. Med. Ctr., 64 NY2d 851, 853). "
 

Guardian is appointed for an incapacitated person.  Guardain defalcates with the money.  Court examiner is appointed to look over the guardian’s accounts.  Court examiner fails to pick up the missing money.  Is the Court examiner responsible or liable to anyone at all?  Seems the answer is no.

United States Fire Ins. Co. v Raia    2012 NY Slip Op 02482    Decided on April 3, 2012   Appellate Division, Second Department    "United States Fire Insurance Company (hereinafter U.S. Fire) commenced this action on its own behalf and as subrogee/assignee of Andrea S., an incapacitated person (hereinafter the IP). In its complaint, U.S. Fire alleged that the defendant Camille A. Raia was appointed guardian of the IP’s property and obtained a guardianship bond through U.S. Fire, as surety. The complaint further alleged that Raia was removed as the guardian of the IP’s property as a result of a criminal investigation ultimately resulting, upon stipulation, in a surcharge to the guardianship bond, and an assignment of all rights and causes of action to U.S. Fire in exchange for a payment thereon.

Thereafter, U.S. Fire commenced this action, inter alia, to recover damages for legal malpractice and breach of fiduciary duty from the defendant Jerome M. Karp, who had been appointed as a court examiner pursuant to Mental Hygiene Law article 81. In essence, the complaint alleged that Karp failed to discover Raia’s defalcation in a timely manner. Karp moved pursuant to CPLR 3211(a)(1) and (7) to dismiss the complaint insofar as asserted against him, and U.S. Fire opposed the motion. The Supreme Court granted that branch of Karp’s motion which was pursuant to CPLR 3211(a)(7) to dismiss the complaint insofar as asserted against him. U.S. Fire appeals. We affirm.

"On a motion to dismiss for failure to state a cause of action pursuant to CPLR [*2]3211(a)(7), the sole criterion is whether the pleading states a cause of action, and if from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law[,] a motion for dismissal will fail’" (Kopelowitz & Co., Inc. v Mann, 83 AD3d 793, 796, quoting Guggenheimer v Ginzburg, 43 NY2d 268, 275; see Leon v Martinez, 84 NY2d 83, 87-88).

The Supreme Court properly granted that branch of Karp’s motion which was to dismiss the cause of action to recover damages for legal malpractice insofar as asserted against him. "To establish a cause of action alleging legal malpractice, a plaintiff must prove, inter alia, the existence of an attorney-client relationship" (Nelson v Roth, 69 AD3d 912, 913; see Terio v Spodek, 63 AD3d 719, 721; Velasquez v Katz, 42 AD3d 566, 567). "[A]bsent fraud, collusion, malicious acts, or other special circumstances, an attorney is not liable to third parties, not in privity, for harm caused by professional negligence" (Rovello v Klein, 304 AD2d 638, 638; see Ginsburg Dev. Cos., LLC v Carbone, 85 AD3d 1110, 1111-1112; Aranki v Goldman & Assoc., LLP, 34 AD3d 510, 511-512). Here, the complaint fails to allege the existence of an attorney-client relationship between Karp, on the one hand, and the IP or U.S. Fire, on the other hand (see Nelson v Roth, 69 AD3d at 913; Rovello v Klein, 304 AD2d at 638-639).

The Supreme Court properly granted that branch of Karp’s motion which was to dismiss the cause of action to recover damages for breach of fiduciary duty insofar as asserted against him. To state a cause of action to recover damages for breach of fiduciary duty, a plaintiff must allege: "(1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and (3) damages directly caused by the defendant’s misconduct" (Rut v Young Adult Inst., Inc., 74 AD3d 776, 777; see Kurtzman v Bergstol, 40 AD3d 588, 590). A breach of fiduciary duty cause of action must be pleaded with the particularity required by CPLR 3016(b) (see Palmetto Partners, L.P. v AJW Qualified Partners, LLC, 83 AD3d 804, 808; Chiu v Man Choi Chiu, 71 AD3d 621, 623). Here, although the complaint alleged that Karp owed statutory and fiduciary duties to the IP and U.S. Fire, "[o]n a motion to dismiss a complaint pursuant [to] CPLR 3211(a)(7), bare legal conclusions are not presumed to be true’" (Kopelowitz & Co., Inc. v Mann, 83 AD3d at 798, quoting Kupersmith v Winged Foot Golf Club, Inc., 38 AD3d 847, 848). The complaint did not allege facts that would give rise to a fiduciary relationship between Karp, on the one hand, and the IP or U.S. Fire, on the other hand (see Refreshment Mgt. Servs., Corp. v Complete Off. Supply Warehouse Corp., 89 AD3d 913; Baer v Complete Off. Supply Warehouse Corp., 89 AD3d 877; Kopelowitz & Co., Inc. v Mann, 83 AD3d at 797-798). "

Ginsberg v Broome ; 2012 NY Slip Op 02585 ; Decided on April 5, 2012 ; Appellate Division, First Department  opens the curtain over how partnerships break up, and the fall out over telling an insurance company that there had been legal malpractice committed by a partner.  This case has been partialy dismissed in Supreme Court, and that decision is now affirmed on appeal.
 

"The second cause of action lacks a theory of recovery. The third cause of action is expressly founded on the parties’ partnership agreement, which negates plaintiff’s factual allegations and establishes a defense to his claims as a matter of law (see e.g. Biondi v Beekman Hill House Apt. Corp., 257 AD2d 76, 81 [1999], affd 94 NY2d 659 [2000]; US Express Leasing, Inc. v Elite Technology (NY), Inc., 87 AD3d 494 [2011]). The fourth and fifth causes of action, which sound in defamation, are not pleaded with sufficient particularity (see CPLR 3016[a]; Manas v VMS Assoc., LLC, 53 AD3d 451, 454-455 [2008]). Indeed, conceding the insufficiency, plaintiff seeks, for the first time on appeal, to recast these causes of action as claims for breach of fiduciary duty with malicious intendment. This argument is unavailing as well as unpreserved. The fourth cause of action alleges that defendant falsely reported that plaintiff engaged in malpractice. However, plaintiff acknowledged that the partnership had a duty to report potential malpractice, that the malpractice likely occurred on two of the three reported occasions, and that one instance of malpractice was correctly attributed to him. The fifth cause of action alleges that defendant disseminated false information about plaintiff in the legal community, harming plaintiff’s "new firm." The reference to a "new" firm suggests that defendant was no longer [*2]plaintiff’s partner at the time, which undermines the claim that he breached any fiduciary duty to plaintiff. "

How does one prove that the settlement was not good enough, given the circumstances? How does one prove that had this or that taken place, that Husband would have paid less, and more to the point, how does one prove that Husband was the victim rather than the beneficiary of the settlement? It’s all in the minutia of the divorce dollars.

in Sevey v Friedlander ; 2011 NY Slip Op 02978 ;Decided on April 14, 2011 ;Appellate Division, Third Department we see that even the purchase of a car by husband is factored into the mix. Question: was he misled, was there malpractice, or did he know exactly what he was getting and giving, and now is simply carrying on war under a different caption?
 

"Defendants established that the settlement was, in many regards, financially favorable to plaintiff. For example, his temporary child support for his three children of $2,000 per month was reduced in the stipulation to $650 per month and he agreed to pay that amount for four years at which time his wife was required to pay child support to plaintiff for their son who resided with him. The duration of spousal maintenance for the long-term marriage was also capped at four years and, in fact, he paid for a shorter duration because his spouse remarried. Although he had received a $20,000 bonus on top of his $95,000 salary, his stipulated income included none of the bonus money. His spouse’s stipulated income from her small business was set at $28,000, which was an amount falling between her claimed earnings of $14,596 and the $46,703 contended by plaintiff’s expert. Moreover, at the time the divorce case was pending, plaintiff purchased a luxury car with monthly payments of nearly $800 for five years, an action that did not assist his position in the negotiations. Defendants submitted sufficient proof to shift the burden as to the element of whether plaintiff sustained actual damages.

Plaintiff contends that he would have received a more favorable result if he had gone to trial. On this record, his contention is entirely speculative (see Boone v Bender, 74 AD3d 1111, 1113 [2010]). "