| Schrowang v Biscone |
| 2015 NY Slip Op 03910 [128 AD3d 1162] |
| May 7, 2015 |
| Appellate Division, Third Department |
[*1]
| Patricia Schrowang, Respondent, v Michael J. Biscone,Appellant. |
Robert P. Roche, Albany, for appellant.
Law Office of Philip A. Wellner, Hudson (Philip A. Wellner of counsel), forrespondent.
Lynch, J. Appeal from an order of the Supreme Court (Mott, J.), entered August 15,2014 in Greene County, which, among other things, denied defendant's motion forsummary judgment dismissing the complaint.
Plaintiff retained defendant to represent her in a divorce action. On July 25, 2012, theday the trial was scheduled to begin, plaintiff and her husband signed a settlementagreement wherein, among other things, plaintiff agreed to vacate the marital residenceand list the property for sale within 90 days. In September 2013, plaintiff commencedthis legal malpractice action alleging that defendant failed to take steps to enforce atemporary order of protection and automatic orders pursuant to Domestic Relations Law§ 236, did not prepare for trial, and that he instead "browbeat[ ]" plaintiffinto signing the agreement. Following joinder of issue, defendant moved for dismissal ofthe legal malpractice action pursuant to CPLR 3212, alleging that plaintiff failed to statea cause of action pursuant to CPLR 3211 (a) (1) and (7). Plaintiff moved for partialsummary judgment on liability. Supreme Court denied both motions, prompting thisappeal by defendant.
A viable cause of action for legal malpractice exists where a plaintiff demonstrates"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 breachof this duty proximately caused [the] plaintiff to sustain actual and ascertainabledamages" (Arnold vDevane, 123 AD3d 1202, 1203-1204 [2014] [internal quotation marks andcitation omitted]; see Hyman vSchwartz, 114 AD3d 1110, 1112 [2014], lv dismissed 24 NY3d 930[2014]). Here, plaintiff alleged that during [*2]thependency of the divorce action, she informed defendant that her husband had removedher name from their joint checking account, took more than $100,000 from his retirementaccount, removed marital assets worth approximately $75,000 from the maritalresidence,[FN1]transferred title of their vehicle to his name only and engaged in certain conduct inviolation of a temporary order of protection. Further, according to plaintiff, defendanttold her that he planned to have three people testify at the trial, but she learned the daybefore the scheduled trial date that defendant had not served trial subpoenas on theseindividuals. Plaintiff further alleged that, because he was not prepared on the day of trial,defendant negotiated a separation agreement with her husband's counsel withoutexplaining it to her and without her consent. As defendant concedes, plaintiff tolddefendant in advance of the trial that her priority was to remain in the marital residence,where she lived with her teenaged daughter and her elderly, infirm mother. Nonetheless,on the day of trial defendant told plaintiff that if she did not sign the agreement, the trialcourt would force her to vacate the marital residence within 10 days. Plaintiffacknowledges that she signed the agreement, then left the courthouse because defendanttold her that it was closing for lunch and, when she returned, she was advised that hercase had been called and the separation agreement had been placed on the record in herabsence.
As the proponent of a motion for summary judgment dismissing the complaint,defendant was required to demonstrate with admissible evidence that plaintiff was unableto establish at least one of the elements of her claim (see Geraci v Munnelly, 85 AD3d 1361, 1362 [2011]; Sevey v Friedlander, 83 AD3d1226, 1226 [2011], lv denied 17 NY3d 707 [2011]). To this end, defendantsubmitted an affidavit wherein he claimed that he issued a subpoena to plaintiff'shusband's paramour,[FN2] but did not serve two other individualsbecause it would not "enhance [plaintiff's] case."[FN3] He explained that he arrived at thecourthouse on the day of plaintiff's trial to learn that the trial judge had at least three trialsscheduled and he planned to leave at 1:00 p.m. Defendant claimed that the judge toldhim that he had better "get [a settlement] done" before the noon recess or it would bescheduled for a trial at some adjourned date. Defendant explained that when he told thejudge that plaintiff wanted to keep the marital residence, the judge informed him that hecould order the sale of the property within 10 days. According to defendant, when herelayed this information to plaintiff, she "became highlyemotional—hysterical—and bolted out of the . . . room. . . dropped to her knees in front of the . . . husband crying andsobbing and saying if he would agree to her staying there she would concede virtuallyanything and everything. At that time the initiative was gone, we had lost the staringcontest. Hence I proceeded to make the best terms possible." Review of the separationagreement confirms that the parties agreed to sell the marital residence and split theproceeds, but that plaintiff, her daughter and mother were allowed to remain in the homefor approximately 60 days following the agreement's execution. Otherwise, defendantdoes not provide any specific evidence with regard to the marital property, and theagreement only provides, in generic terms, [*3]thatplaintiff and her husband equitably distributed their marital property.
Here, as defendant has not submitted any expert evidence with regard to whether theservices before us provided to plaintiff met the applicable standard of care, "the issue. . . distills to whether defendant met his threshold burden as to the elementof either proximate cause or damages" (Arnold v Devane, 123 AD3d at 1204[2014]). We disagree with defendant's argument that plaintiff cannot establish either ofthese elements because she settled the underlying divorce action. Where, as here, theunderlying claim is resolved by agreement, this element may be established by evidencethat the "settlement . . . was effectively compelled by the mistakes ofcounsel" (Marchell vLittman, 107 AD3d 1082, 1083 [2013], lv denied 22 NY3d 856 [2013][internal quotation marks and citations omitted]; see Lattimore v Bergman, 224AD2d 497 [1996]). While defendant insisted that he negotiated the "best terms" possible,he fails to explain whether or to what extent defendant was familiar with the value of themarital property, whether he investigated plaintiff's complaints that the husband hadtaken substantial marital assets in violation of Domestic Relations Law§ 236, or whether he was prepared to present any evidence at trial withrespect to the marital property on his client's behalf. Rather, defendant cites the trialjudge's schedule and observations with regard to the marital residence and plaintiff's"hyster[ia]" as the reason why he encouraged his client to settle the action on the termsthat he negotiated.
Contrary to defendant's brief, a directive from the trial court to explore a settlementdoes not require counsel "as an officer of the court" to forgo his or her client's right to atrial. Moreover, as defendant acknowledged, an adjournment of the trial date was anavailable option given the time constraints on the court, and it is troubling that anadjournment was not pursued considering defendant's own description of plaintiff asemotionally distraught. Without any indication that defendant was fully informed withregard to the marital property, we decline to credit his opinion that the settlement was thebest that could be accomplished under the circumstances. When we view the evidence ina light most favorable to plaintiff, as we must (see M & R Ginsburg, LLC v Segal, Goldman, Mazzotta &Siegel, P.C., 90 AD3d 1208, 1210 [2011]), we agree with Supreme Court'sfinding that the record presents factual questions with regard to whether plaintiff wascompelled to settle her divorce action by defendant's negligence (see Shapiro vButler, 273 AD2d 657, 660 [2000]). As such, defendant did not meet his burden onthe issues of proximate cause and damages, and the burden never shifted to plaintiff todemonstrate a triable issue of fact (see Arnold v Devane, 123 AD3d at 1205; Angeles v Aronsky, 109 AD3d720, 722-723 [2013]; Steven L. Levitt & Assoc., P.C. v Balkin, 54 AD3d403, 406 [2008]).
Finally, we decline to address the merits of defendant's claims that the complaint wasbarred by the doctrine of collateral estoppel and or law of the case, noting that he failedto raise these defenses in either a pre-answer motion to dismiss or in his answer to thecomplaint (see Browne v Boardof Educ., 122 AD3d 563, 564 [2014]; Town of Delhi v Telian, 119 AD3d 1049, 1050[2014]).
Garry, J.P., Egan Jr. and Clark, JJ., concur. Ordered that the order is affirmed, withcosts.
Footnote 1:These assets allegedlyincluded an excavator and generator.
Footnote 2:The affidavit of service,which is not sworn, indicates that the paramour may have been served four days prior tothe trial date.
Footnote 3:Defendant explains that,at some point, he spoke with one of the two individuals, a "local real estate man" whomay have had information about secreted assets sometime after the trial and that he"laughed and said . . . the wife's suspicion was baseless."