| Minkow v Sanders |
| 2011 NY Slip Op 02120 [82 AD3d 597] |
| March 24, 2011 |
| Appellate Division, First Department |
| Ellen Minkow, Appellant, v Alan J. Sand/ers et al.,Respondents. |
—[*1] Furman Kornfeld & Brennan, LLP, New York (A. Michael Furman of counsel), forrespondents.
Order, Supreme Court, New York County (Jane S. Solomon, J.), entered December 7, 2009,which granted defendants' motion to dismiss the complaint, unanimously affirmed, without costs.
The documentary evidence conclusively disposed of plaintiff's legal malpractice claims(see Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). The hearingcourt found that plaintiff's disobedience of the so-ordered stipulation directing her to transfercertain custodial accounts to her husband's attorney to be placed in escrow or immediatelyliquidate the accounts and transfer the proceeds was willful. In light of such willful conduct, themotion court properly found that plaintiff—not her attorneys—was the proximatecause of her contempt adjudication and the resulting incarceration (see Delfyette v Fisher,40 AD2d 674 [1972]). We note that letters from the husband's attorneys, which were provided toplaintiff by defendants, unambiguously indicated that plaintiff's compliance with the so-orderedstipulation was a condition precedent to further settlement discussions. Defendants' allegedfailure to correct the purge amount set forth in the contempt order to conform to the stipulationwas also not a proximate cause of plaintiff's incarceration from December 23 through December26, since the stipulation identified the amounts in the subject accounts as "approximate currentbalance[s]," thus recognizing that their values were subject to market fluctuation. In addition, theslightly higher purge amount in the contempt order conformed to plaintiff's own authorization totransfer the accounts dated just the previous day. Defendants' alleged failures to obtain andprovide discovery and with respect to support could have been remedied by successor counsel(see Somma v Dansker & AspromonteAssoc., 44 AD3d 376, 377 [2007]); moreover, any attempt at modification of thependente lite award would have had limited prospects of success (see Nimkoff v Nimkoff, 69 AD3d501 [2010]). We have considered plaintiff's other contentions and find them unavailing.Concur—Gonzalez, P.J., Catterson, Richter, Abdus-Salaam and RomÁn, JJ.[Prior Case History: 2009 NY Slip Op 32847(U).]