Sevey v. Friedlander, 83 A.D.3d 1226, 920 N.Y.S.2d 831 (2011)
NY: Underlying divorce action
Student Contributor: Alexis Trezza
Facts: Defendant represented plaintiff in a divorce action. Prior to trial, a settlement was negotiated, and a stipulation setting forth the terms of settlement was placed on the record in July 2003. Plaintiff acknowledged on the record that he understood and accepted the terms of the settlement, and they were included in the divorce judgment in August 2003. In March 2006, plaintiff commenced a legal malpractice action against defendant because he was unhappy with some of the financial terms in the divorce judgment and he alleged that defendant had pressured him into accepting a settlement that was unfavorable. Defendant attorney moved for summary judgment, which was granted, and plaintiff appealed.
Issue: Was the attorney’s motion for summary judgment properly granted?
Ruling: Yes. 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 the plaintiff to sustain actual and ascertainable damages. As the proponents of summary judgment, defendants had the initial burden of “presenting evidence in admissible form establishing that plaintiff is unable to prove at least one of these elements.” Where this threshold is satisfied, plaintiff must then provide proof raising triable issues of fact and “mere speculation about a loss resulting from an attorney’s alleged poor performance is insufficient.”
Lesson: Merely speculating that you would have obtained a more favorable result at trial is not enough to survive a threshold motion for summary judgment made by defendant.
Tagged with: Divorce, duty, judgment, malpractice, New York, property settlement agreement, speculative damages, summary, threshold
Posted in: New York