SARA C. HUFSTADER, Also Known as SARA H. STRAUSS, Appellant,
FRIEDMAN AND MOLINSEK, P.C., et al., Respondents.
Calendar Date: March 27, 2017
M. Matusik, Saratoga Springs (Nicholas E. Tishler, Niskayuna,
of counsel), for appellant.
Napierski, VanDenburgh, Napierski & O'Connor, LLP,
Albany (Shawn T. Nash of counsel), for respondents.
Before: McCarthy, J.P., Garry, Egan Jr., Rose and Mulvey, JJ.
MEMORANDUM AND ORDER
from an order of the Supreme Court (Crowell, J.), entered
March 13, 2015 in Saratoga County, which granted
defendants' motion for summary judgment dismissing the
December 2005, plaintiff retained defendants to represent her
in an action for divorce. On October 1, 2007, on the first
day of trial in the divorce action, plaintiff's husband
moved to dismiss the complaint for failure to establish
grounds for divorce, and Supreme Court (Seibert, J.) granted
the motion and dismissed the complaint. In September 2010,
plaintiff commenced an action against defendants for, as
pertinent here, legal malpractice and breach of contract
related to the divorce action. Defendants moved for summary
judgment dismissing the complaint, which Supreme Court
(Crowell, J.) granted on the grounds that plaintiff failed to
establish proximate cause as to her legal malpractice cause
of action and that the breach of contract cause of action was
duplicative of the malpractice claim . Plaintiff appeals.
succeed upon the legal malpractice claim, plaintiff was
required to demonstrate that defendants "failed to
exercise the ordinary reasonable skill and knowledge commonly
possessed by a member of the legal profession, " that
this failure was the proximate cause of actual damages to
plaintiff, and that "the plaintiff would have succeeded
on the merits of the underlying action but for the
attorney's negligence" (Levine v Horton,
127 A.D.3d 1395, 1397  [internal quotation marks and
citations omitted]; see Rudolf v Shayne, Dachs, Stanisci,
Corker & Sauer, 8 N.Y.3d 438, 442 ; Miazga
v Assaf, 136 A.D.3d 1131, 1133 , lv
dismissed 27 N.Y.3d 1078');">27 N.Y.3d 1078 ). Upon their application
for summary judgment, defendants "were required to
present evidence in admissible form establishing that
plaintiff is unable to prove at least one of these
elements" (Country Club Partners, LLC v
Goldman, 79 A.D.3d 1389, 1391  [internal quotation
marks and citation omitted]; see Miazga v Assaf, 136
A.D.3d at 1133-1134).
primary contention is that defendants' alleged mistakes
resulted in the dismissal of the underlying divorce action,
and thus compelled her to subsequently enter into a
separation agreement with her husband. One of the arguments
raised by defendants in opposition is that the circumstances
of plaintiff's execution of the separation agreement,
while represented by successor counsel, establish that
defendants cannot be the proximate cause of plaintiff's
alleged damages. Generally, the settlement of an underlying
action will not preclude a claim for legal malpractice
(see Schrowang v Biscone, 128 A.D.3d 1162, 1164
; Katz v Herzfeld & Rubin, P.C., 48 A.D.3d
640, 641 ; Somma v Dansker & Aspromonte
Assoc., 44 A.D.3d 376, 377 ). However, the element
of proximate cause cannot be established where a plaintiff
has entered into a settlement while represented by successor
counsel and the "successor counsel had sufficient time
and opportunity to adequately protect [the] plaintiff's
rights" in the underlying action (Somma v Dansker
& Aspromonte Associates, 44 A.D.3d at 377; see
New Kayak Pool Corp. v Kavinoky Cook LLP, 125 A.D.3d
1346, 1349 ; Alden v Brindisi, Murad, Brindisi,
Pearlman, Julian & Pertz ["The People's
Lawyer"], 91 A.D.3d 1311, 1311 ; Katz v
Herzfeld & Rubin, P.C., 48 A.D.3d at 641).
addition to expert testimony, defendants submitted the
parties' deposition testimony upon their motion. It is
undisputed that, in November 2007, following the oral
dismissal of the underlying divorce action, plaintiff
retained new counsel. Plaintiff testified that she contacted
the successor counsel to "see what [her] options
were" following the dismissal of the divorce action.
Notably, the retainer agreement between defendants and
plaintiff specifically excluded "any work in [a]ppellate
[c]ourts." On December 7, 2007, prior to the issuance of
the written order of dismissal in the divorce action,
plaintiff - represented by the successor counsel - entered
into a separation agreement with her husband . It is
undisputed that defendants did not represent plaintiff in the
execution of the separation agreement. Thereafter, the order
dismissing the divorce action was issued on December 11, 2007
and was entered on January 7, 2008. Defendants contend that
as the successor counsel was thus retained over a month prior
to the issuance of the written order of dismissal, she had
sufficient time to protect plaintiff's rights in the
divorce action (see CPLR 5513 [a]; 2221[d] ).
Under these circumstances, defendants have established, prima
facie, that their actions were not the proximate cause of
plaintiff's alleged damages (see New Kayak Pool Corp.
v Kavinoky Cook LLP, 125 A.D.3d at 1349; Alden v
Brindisi, Murad, Brindisi, Pearlman, Julian & Pertz
["The People's Lawyer"], 91 A.D.3d at
1311; Katz v Herzfeld & Rubin, P.C., 48 A.D.3d
at 641; Perks v Lauto & Garabedian, 306 A.D.2d
261, 262 ; Golden v Cascione, Chechanover &
Purcigliotti, 286 A.D.2d 281, 281 ). Plaintiff has
not raised any questions of fact in this regard (see
Benaquista v Burke, 74 A.D.3d 1514, 1515-1516 ).
Accordingly, Supreme Court properly granted defendants'
motion for summary judgment dismissing this cause of action
(see Miazga v Assaf, 136 A.D.3d at 1134-1135).
cause of action for breach of contract was also properly
dismissed. Plaintiff alleges that defendants failed to
exercise their "best efforts" as required by the
parties' retainer agreement, resulting in their failure
to secure her a divorce and equitable distribution. The
allegations as to the breach of contract cause of action are
entirely duplicative of the legal malpractice cause of
action, in that they arise out of the same facts and fail to
allege distinct damages (see Hyman v Schwartz, 137
A.D.3d 1334, 1335 ; Hyman v Burgess, 125
A.D.3d 1213, 1215 ; Sage Realty Corp. v Proskauer
Rose, 251 A.D.2d 35, 38-39 ; see also DiTondo
v Meagher, 85 A.D.3d 1385, 1385-1386 ). Moreover,
the retainer specifically disavows any guarantee of success
in plaintiff's underlying action for divorce and
equitable distribution (see Pacesetter Communications
Corp. v Solin & Breindel, 150 A.D.2d 232, 236
, lv dismissed 74 N.Y.2d 892');">74 N.Y.2d 892 ;
Saveca v Reilly, 111 A.D.2d 493, 494-495 ;
see also Sage Realty Corp. v Proskauer Rose, 251
A.D.2d at 39). Accordingly, Supreme Court properly dismissed
plaintiff's cause of action for breach of contract.
of our determination, the parties' remaining arguments
have been rendered academic.
McCarthy, J.P., Egan Jr., Rose and ...