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NY: To Prevail on Summary Judgment, Defendant Attorney Must Show That Plaintiff Is Unable To Prove Any of the Required Elements in a Legal Malpractice Case

Ehlinger v. Ferlazzo, PC, 304 AD 2d 925 (3rd Dept. 2003)

NY: Underlying Divorce Action

Student Contributor: Mordechai Goldenberg

Facts: Plaintiff retained defendants to represent him in a divorce action against his wife. One of the disputed issues in the action was ownership of certain real property titled solely in wife’s name. Plaintiff claimed an equitable interest in the property based on his having paid off its mortgage in reliance on his wife’s promise to name him a co-owner on the deed. Well after the start of the divorce action, and unknown to plaintiff, his wife remortgaged the property. The court found plaintiff was entitled to a constructive trust upon the property, the court ordered his wife either to repay him $161,595.06, the amount he invested in the property, or convey her interest in the property to him. However, his wife’s actions in mortgaging the property before the divorce, filing for bankruptcy immediately afterward and precipitating a foreclosure precluded plaintiff from recovering award. Plaintiff then commenced a legal malpractice action alleging that the failure of his attorney to seek pendente lite relief in the divorce action or file a lis pendens as to the property constituted negligence and caused him to lose the divorce award.

Issue: Should defendants have succeeded on their motion for summary judgment which argued that plaintiff was unable to prove at least one of the required elements in a legal malpractice claim?

Ruling: No. The court agreed that defendants’ submissions were sufficient to show that their decision not to pursue pendente lite relief did not depart from the applicable standard of care. In this regard, attorney’s affidavit was not conclusory. However, the court reached a different conclusion with regard to attorney’s failure to file a notice of pendency before plaintiff’s wife encumbered the property. Defendants’ moving papers were insufficient to show that this failure was not malpractice or the proximate cause of plaintiff’s damages.

Lesson: To recover damages for legal malpractice, a plaintiff must demonstrate that the attorney was negligent, that the negligence was a proximate cause of the loss sustained and that plaintiff suffered actual and ascertainable damages. If plaintiff is able to provide a sufficient showing for any of the three, the attorney’s motion for summary judgment will be denied.

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Posted in: Family Law, New York, Real Estate