Chamberlain, D'Amanda, Oppenheimer & Greenfield, LLP v. Wilson

Appeal and cross appeal from an amended order of the Supreme Court, Monroe County (John J. Ark, J.), entered August 5, 2014. The amended order denied the motion of defendant for summary judgment dismissing the complaint and for partial summary judgment on her counterclaim, and denied the cross motions of plaintiff for summary judgment on the complaint and for summary judgment dismissing the counterclaim.

It is hereby ordered that the amended order so appealed from is unanimously modified on the law by granting the cross motion for summary judgment dismissing the counterclaim, and dismissing the counterclaim, and as modified the amended order is affirmed without costs.

Following the completion of discovery, defendant moved for summary judgment dismissing the complaint, as well as for summary judgment on that part of her counterclaim asserting that plaintiff is liable to her for failing to have her former husband pay all of her counsel fees in the underlying matrimonial action. Plaintiff cross-moved for summary judgment dismissing defendant’s legal malpractice counterclaim in its entirety. The court, inter alia, denied the motion and the cross motion. We conclude that the court erred in denying plaintiff’s cross motion for summary judgment dismissing the counterclaim, and we therefore modify the amended order accordingly.

Defendant contends, inter alia, that but for plaintiff’s alleged negligence she would have received a more favorable result had she proceeded to trial. Generally, “to recover damages for legal malpractice, a [client] must prove (1) that the [law firm] failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community, (2) proximate cause, (3) damages, and (4) that the [client] would have been successful in the underlying action had the [law firm] exercised due care” (Iannarone v Gramer, 256 AD2d 443 , 444 [1998]; see Blank v Harry Katz, P.C., 3 AD3d 512 , 513 [2004]). In a legal malpractice action in which there was no settlement of the underlying action, it is well settled

Here, we conclude that plaintiff met its burden by establishing that it did not fail to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the separation agreement was not the product of any mistakes of counsel (see Schiff, 128 AD3d at 669 ; Boone, 74 AD3d at 1113 ; cf. Steven L. Levitt & Assoc., P.C. v Balkin, 54 AD3d 403 , 406 [2008]). The separation agreement recited, inter alia, that defendant understood the terms and conditions of the agreement, freely and voluntarily accepted such terms, and believed it to be fair, adequate, and reasonable. Plaintiff further established that the separation agreement was in many respects financially favorable to defendant. Thus, we conclude that plaintiff thereby shifted the burden to defendant to raise a triable issue of fact (see Schiff, 128 AD3d at 669-670 ).

We conclude that, on this record, defendant’s contentions that after a trial the court would have, inter alia: required her former husband to pay all of her counsel fees; awarded her a share of the alleged increased value of her former husband’s business; and awarded her lifetime maintenance, are speculative and conclusory (see Sevey v Friedlander, 83 AD3d 1226 ,

In light of our determination, we do not address the remaining contentions of the parties.

Present — Peradotto, J.P., Carni, Whalen and DeJoseph, JJ.