| Sevey v Friedlander |
| 2011 NY Slip Op 02978 [83 AD3d 1226] |
| April 14, 2011 |
| Appellate Division, Third Department |
| Donald D. Sevey, Appellant, v Betty D. Friedlander et al.,Respondents. |
—[*1] Hiscock & Barclay, Syracuse (Kevin M. Hayden of counsel), for respondents.
Lahtinen, J. Appeal from an order of the Supreme Court (Reynolds Fitzgerald, J.), enteredSeptember 9, 2009 in Tompkins County, which granted defendants' motion for summaryjudgment dismissing the complaint.
In 2002, plaintiff retained defendant Betty D. Friedlander of defendant Friedlander andFriedlander, P.C. to represent him in his divorce action. Prior to trial, the divorcing partiesnegotiated a settlement. A stipulation was placed on the record in July 2003 setting forth theterms thereof and plaintiff, an ostensibly sophisticated businessperson, acknowledged on therecord that he understood and accepted the terms of the stipulation. The terms were included inthe divorce judgment, which was executed and entered in August 2003. Thereafter, plaintiffbecame disenchanted with some of the financial terms of the judgment of divorce and hecommenced this legal malpractice action in March 2006 asserting, among other things, thatFriedlander had pressured him to accept an unfavorable settlement. Following disclosure,defendants moved for summary judgment dismissing the complaint. Supreme Court granted themotion and plaintiff appeals.
We affirm. "In an action to recover damages for legal malpractice, a plaintiff mustdemonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledgecommonly possessed by a member of the legal profession and that the attorney's breach of thisduty proximately caused [the] plaintiff to sustain actual and ascertainable damages" (Rudolf v Shayne, Dachs, Stanisci, Corker& Sauer, 8 NY3d 438, 442 [2007] [internal quotation marks and [*2]citation omitted]; see Brodeur v Hayes, 18 AD3d 979, 980 [2005], lv dismissedand denied 5 NY3d 871 [2005]). As the proponents of summary judgment, defendants hadthe initial burden of "present[ing] evidence in admissible form establishing that plaintiff is unableto prove at least one of these elements" (Ehlinger v Ruberti, Girvin & Ferlazzo, 304AD2d 925, 926 [2003]; see Benaquistav Burke, 74 AD3d 1514, 1515 [2010]). Where this threshold is satisfied, plaintiff mustthen provide proof raising triable issues of fact and "[m]ere speculation about a loss resultingfrom an attorney's [alleged] poor performance is insufficient" (Antokol & Coffin v Myers, 30 AD3d843, 845 [2006]; see MacDonald vGuttman, 72 AD3d 1452, 1455 [2010]).
Defendants established that the settlement was, in many regards, financially favorable toplaintiff. For example, his temporary child support for his three children of $2,000 per monthwas reduced in the stipulation to $650 per month and he agreed to pay that amount for four yearsat which time his wife was required to pay child support to plaintiff for their son who residedwith him. The duration of spousal maintenance for the long-term marriage was also capped atfour years and, in fact, he paid for a shorter duration because his spouse remarried. Although hehad received a $20,000 bonus on top of his $95,000 salary, his stipulated income included noneof the bonus money. His spouse's stipulated income from her small business was set at $28,000,which was an amount falling between her claimed earnings of $14,596 and the $46,703contended by plaintiff's expert. Moreover, at the time the divorce case was pending, plaintiffpurchased a luxury car with monthly payments of nearly $800 for five years, an action that didnot assist his position in the negotiations. Defendants submitted sufficient proof to shift theburden as to the element of whether plaintiff sustained actual damages.
Plaintiff contends that he would have received a more favorable result if he had gone to trial.On this record, his contention is entirely speculative (see Boone v Bender, 74 AD3d 1111, 1113 [2010]). While hisstipulated child support obligation did not immediately cease when each child turned 21, theamount was reduced by $1,350 a month from the temporary order and was significantly less thanhis child support obligation as calculated under the Child Support Standards Act (seeDomestic Relations Law § 240 [1-b]). Moreover, the four-year period for child supportwas discussed on the record when the settlement terms were being set forth, plaintiff was presentand he expressed no objection or confusion at such time. His assertion that his pro rata share ofcollege costs should have been lower is based upon his speculation that the trial court would havebeen persuaded by his proof regarding his wife's income. An equally valid speculation is that thetrial court would have accepted his wife's proof about her even lower income and also wouldhave included plaintiff's bonus as income, resulting in a higher pro rata contribution. We agreewith Supreme Court that plaintiff failed to raise a triable issue (see Allen v Krna, 282AD2d 946, 948-949 [2001]).
Plaintiff further asserts that he should have been granted an extension of the return date ofthe motion so that he could obtain an affidavit from an expert. However, the action had beenpending for several years and plaintiff's untimely responses to the motion had already resulted ina lengthy adjournment. Plaintiff offered no viable excuse for his failure to obtain an expert.Under such circumstances, we are unpersuaded that Supreme Court abused its discretion indeclining to grant a further extension of the motion (see Fleck v Calabro, 268 AD2d 738,739 [2000]).
Spain, J.P., Garry and Egan Jr., JJ., concur. Ordered that the order is affirmed, with costs.