Opinion
Index No. 154149/2018
04-22-2021
BETH COPLAN KAUFMAN, Plaintiff, v. BOIES SCHILLER FLEXNER, LLP, DINA KAPLAN, BENDER AND KAPLAN, PC, JOEL C. BENDER, ESQ. PC, BENDER ROSENTHAL ISAACS & RICHTER LLP, BENDER and ROSENTHAL LLP, Defendants.
NYSCEF DOC. NO. 136
DECISION AND ORDER
The following e-filed documents, listed by NYSCEF document number (Motion 005) 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 95, 98, 99, 100, 101, 102, 113, 114, 117 were read on this motion to/for DISMISS. The following e-filed documents, listed by NYSCEF document number (Motion 006) 75, 76, 77, 78, 79, 80, 81, 82, 83, 84, 96, 103, 104, 105, 106, 107, 115 were read on this motion to/for DISMISSAL. The following e-filed documents, listed by NYSCEF document number (Motion 007) 85, 86, 87, 88, 89, 90, 91, 92, 93, 97, 108, 109, 110, 111, 112, 116, 118, 119, 120, 121 were read on this motion to/for DISMISSAL.
Motion sequence nos. 005, 006 and 007 are consolidated for disposition.
This action arises out defendants' representation of plaintiff Beth Coplan Kaufman in a contested matrimonial action against nonparty Thomas Kaufman (Thomas) captioned Kaufman v Kaufman, Sup Ct, Westchester County, Index No. 4815/2012 (the Divorce Proceeding) (NY St Cts Elec Filing [NYSCEF] Doc No. 66, A. Michael Furman [Furman] affirmation, exhibit A, ¶ 11).
In motion sequence no. 005, defendants Bender & Kaplan, P.C. (B&K), Dina Kaplan (Kaplan), and Joel C. Bender, Esq. P.C. (Bender) (collectively, Bender/Kaplan), move, pursuant to CPLR 3211 (a) (1) and (7), for dismissal of the complaint. In motion sequence no. 006, defendants Bender & Rosenthal, LLP (B&R) and Bender Rosenthal Isaacs & Richter LLP (BRIR LLP) (together, BRIR) move, pursuant to CPLR 3211 (a) (5) and (7), for dismissal of the complaint. In motion sequence no. 007, defendant Boies Schiller Flexner LLP (BSF) moves, pursuant to CPLR 3211 (a) (1), (5) and (7) for an order dismissing the complaint against it, or in the alternative, for an order, pursuant to CPLR 7503 (a), staying the present action and compelling plaintiff to arbitrate her claims against it.
FACTUAL BACKGROUND
According to the complaint, plaintiff executed a retainer agreement dated May 14, 2012 with BSF in relation to the Divorce Proceeding (the BSF Retainer) (NYSCEF Doc No. 66, ¶ 13). A clause in the agreement states that, except for a dispute over BSF's fees, arbitration was the sole method by which the parties would resolve a dispute between them (NYSCEF Doc No. 89, Marilyn C. Kunstler [Kunstler] affirmation, exhibit B at 1).
BSF allegedly advised plaintiff to retain counsel familiar with the practice of matrimonial law in Westchester County (NYSCEF Doc No. 66, ¶ 14). Upon BSF's recommendation, plaintiff executed a separate retainer agreement dated May 21, 2012 with BRIR LLP (the BRIR Retainer) (id., ¶ 15). According to the BRIR Retainer, Bender was an of counsel to the firm (NYSCEF Doc No. 81, Matthew K. Flanagan [Flanagan] affirmation, exhibit E at 1). Kaplan was an associate to Bender (id. at 3; NYSCEF Doc No. 65, Kaplan aff, ¶ 6). B&R is the successor firm to BRIR LLP (NYSCEF Doc No. 82, Flanagan affirmation, exhibit F at 2). In 2014, the entity known as "Joel C. Bender, Esq., P.C." changed its name to "Bender & Kaplan, P.C.," and remained known as B&K until 2017, when its name reverted back to "Joel C. Bender, Esq., P.C." (id. at 4).
Plaintiff complains that "[d]efendants committed various acts of overbilling, legal malpractice, and violated Judiciary Law section 487" in connection with their representation of her in the Divorce Proceeding (NYSCEF Doc No. 66, ¶ 12).
First, it is alleged that "Kaplan committed malpractice almost immediately" by agreeing in a preliminary conference stipulation that "jewelry; art work; cars; personal property" were Thomas's separate property, thereby blocking her "efforts to obtain a proper equitable distribution of marital assets" (NYSCEF Doc No. 66, ¶¶ 18-19).
Next, defendants allegedly overbilled plaintiff for their services. A report prepared by Timothy Brennan, one of Thomas's experts in the Divorce Proceeding, found that: (1) the BSF Retainer did not comply with 22 NYCRR 1400.3; (2) BSF aided and abetted the unauthorized practice of law by permitting Theodore Uno (Uno), a Florida attorney who was not licensed in New York, to work on the matter; and (3) BSF's legal fees and travel expenses were improper, unreasonable, unnecessary or excessive (NYSCEF Doc No. 66, ¶ 22). BSF billed $484,620 for Uno's services (id., ¶ 28) and $154,043.03 in travel and lodging expenses (id., ¶ 31). In addition to Uno, BSF permitted James Fox Miller (Miller), another Florida attorney who is not licensed in this state, and David A. Barrett (Barrett), a New York attorney without expertise in family law, to work on the matter (id., ¶¶ 30 and 32). After BSF withdrew as plaintiff's counsel, the firm asserted a charging lien for $902,336 (id., ¶ 33). A special referee denied the charging lien because the BSF Retainer did not comply with 22 NYCRR 1400.2 and 1400.3 (id., ¶ 35).
Plaintiff also claims that Kaplan and BSF "cynically cancelled" a mediation that had been scheduled in the Divorce Proceeding without consulting her so they could continue billing time (id., ¶¶ 42 and 46). After the mediation was cancelled, BSF billed $745,189 and the "Bender Defendants" billed $225,193 (id., ¶ 47). Plaintiff claims that the settlement she ultimately obtained "was substantially the same agreement that was available ... at the Mediation" (id., ¶ 44).
Next, in an email to the legal guardian for plaintiff's daughter dated October 15, 2014, Kaplan allegedly disparaged plaintiff, and recommended that Thomas be awarded custody (NYSCEF Doc No. 66, ¶ 25). Kaplan's email purportedly damaged plaintiff's relationship with her daughter (id., ¶ 26).
Plaintiff also alleges that the court denied an order to show cause for discovery, contempt and pendente lite relief filed by defendants because they failed to comply with a local rule requiring the moving party to request a pre-motion conference (NYSCEF Doc No. 66, ¶ 38). Plaintiff claims that defendants "could have remedied the rejection of the order to show cause by simply complying with court rules and re-filing that application," but they failed to do so (id., ¶ 39).
In 2015, plaintiff and Thomas reached a stipulation to settle the custody and financial issues in the Divorce Proceeding (NYSCEF Doc No. 69, Furman affirmation, exhibit D at 3; NYSCEF Doc No. 68, Furman affirmation, exhibit C at 2). The stipulation provides, in part, that plaintiff would receive a pre-equitable distribution of $2 million and an additional $4.75 million, which was subject to change upon the final sale price of the marital residence (NYSCEF Doc No. 68 at 2). On February 18, 2015, plaintiff, represented by B&K and BSF, was allocuted on the record before Justice Lawrence H. Ecker on her understanding of the terms of the stipulation. The stipulation was incorporated, but not merged, into the judgment of divorce entered May 6, 2015 (NYSCEF Doc No. 65, ¶ 20; NYSCEF Doc No. 99, plaintiff aff, ¶ 16).
Plaintiff commenced this action by filing a summons with notice on May 3, 2018. The complaint dated December 3, 2018 pleads two causes of action for breach of contract and for a violation of Judiciary Law § 487. In lieu of serving answers, defendants move for dismissal. Plaintiff has submitted opposition.
THE PARTIES' CONTENTIONS
BSF and BRIR argue that the contract and Judiciary Law claims all sound in legal malpractice, which is subject to a three-year statute of limitations (see CPLR 214 [6]), and are redundant of an unpled, time-barred legal malpractice claim. BSF and BRIR contend that the claims herein accrued on October 15, 2014, which is the date the last allegedly negligent act occurred, and thus, the complaint should be dismissed. Alternatively, all defendants argue that the complaint fails to state a cause of action for breach of contract or for a violation of Judiciary Law § 487. Bender/Kaplan also posit that the complaint fails to state a cause of action for legal malpractice because plaintiff voluntarily settled the Divorce Proceeding in February 2015. BSF separately argues that plaintiff should be compelled to arbitrate her claims based on the arbitration provision in the BSF Retainer.
Plaintiff, in opposition, does not address the timeliness of her claims, nor does she address defendants' arguments regarding the pleading deficiencies. Nevertheless, plaintiff submits that she has adequately pled a cause of action for legal malpractice because she would have "succeeded in the underlying settlement agreement but for the amateurishly written and negotiated terms of that agreement" (NYSCEF Doc No. 98, Patricia A. Swicicki affirmation, ¶ 52). Plaintiff also rejects BSF's argument that the BSF Retainer mandates arbitration because the retainer itself fails to satisfy 22 NYCRR 1400, which sets forth the procedures for attorneys in domestic relations matters. She also asserts that the BSF Retainer is unenforceable because of procedural or substantive unconscionability.
Defendants, in reply, argue that plaintiff's failure to address their substantive arguments calls for dismissal of the complaint against them. They object to the new facts describing additional acts of negligence contained in plaintiff's affidavit. Even if the new facts were considered, defendants maintain that the complaint still fails to plead a claim for malpractice.
DISCUSSION
A motion brought under CPLR 3211 (a) (7) addresses the sufficiency of a pleading (see Aristy-Farer v State of New York, 29 NY3d 501, 509 [2017]). The court must "accept the facts as alleged in the complaint as true, accord the plaintiff the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory (Leon v Martinez, 84 NY2d 83, 87-88 [1994]). "[I]f from its four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law," the motion will be denied (Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]). However, "allegations consisting of bare legal conclusions ... are not entitled to any such consideration" (Connaughton v Chipotle Mexican Grill, Inc., 29 NY3d 137, 141 [2017] [internal quotation marks and citation omitted]). Additionally, "the court is not required to accept factual allegations that are plainly contradicted by the documentary evidence or legal conclusions that are unsupportable based upon the undisputed facts" (Robinson v Robinson, 303 AD2d 234, 235 [1st Dept 2003]). "When documentary evidence is submitted by a defendant 'the standard morphs from whether the plaintiff stated a cause of action to whether it has one'" (Basis Yield Alpha Fund (Master) v Goldman Sachs Group, Inc., 115 AD3d 128, 135 [1st Dept 2014] [citations omitted]).
Dismissal under CPLR 3211 (a) (1) is warranted "where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" (Goshen v Mutual Life Ins. Co. of N.Y., 98 NY2d 314, 326 [2002]). "A paper will qualify as 'documentary evidence' only if it satisfies the following criteria: (1) it is 'unambiguous'; (2) it is of 'undisputed authenticity'; and (3) its contents are 'essentially undeniable'" (VXI Lux Holdco S.A.R.L. v Sic Holdings, LLC, 171 AD3d 189, 193 [1st Dept 2019], quoting Fontanetta v John Doe 1, 73 AD3d 78, 86-87 [2d Dept 2010]).
A. The First Cause of Action for Breach of Contract
The breach of contract cause of action is predicated upon defendants' alleged overbilling practices. According to the complaint, "critical errors, in violation of the terms of the relevant retainer agreements" resulted in substantial overbilling, and defendants charged "[p]laintiff for services that were unnecessary, duplicative or wasteful" (NYSCEF Doc No. 66, ¶¶ 1 and 50).
To sustain a cause of action for breach of contract, the plaintiff must prove the existence of a contract, the plaintiff's performance, the defendant's breach, and damages (see Harris v Seward Park Hous. Corp., 79 AD3d 425, 426 [1st Dept 2010]). "[A] cause of action for breach of contract may be maintained against an attorney 'only where the attorney makes an express promise ... to obtain a specific result and fails to do so'" (Aglira v Julien & Schlesinger, 214 AD2d 178, 185 [1st Dept 2004], quoting Pacesetter Communications Corp. v Solin & Breindel, 150 AD2d 232, 236 [1st Dept 1989], lv dismissed 74 NY2d 892 [1989]; accord Kaplan v Sachs, 224 AD2d 666, 667 [2d Dept 1996], lv dismissed and denied 88 NY2d 952 [1996]).
Applying these principles, the complaint fails to adequately plead a breach of contract claim. First, plaintiff fails to set forth the terms of the BSF Retainer or the BRIR Retainer in the complaint that defendants allegedly breached (see Boies, Schiller & Flexner LLP v Modell, 129 AD3d 533, 534 [1st Dept 2015] [dismissing the defendant client's counterclaim for breach of contract because the defendant failed to identify the specific provision of the retainer in which the plaintiff law firm promised to produce a specific result]; Steiner v Lazzaro & Gregory, 271 AD2d 596, 597 [2d Dept 2000] [dismissing a cause of action for breach of contract where the complaint failed to set forth the terms of the retainer agreement]). Second, a close examination of both retainer agreements reveals that defendants did not commit to obtaining a specific result or outcome for plaintiff in the Divorce Proceeding. Significantly, the BRIR Retainer expressly states, in pertinent part:
"It is specifically acknowledged by you that the firm has made no representations to you, express or implied, concerning the outcome of the litigation presently pending or hereafter to be commenced between you and your spouse. You further acknowledge that the firm has not guaranteed and cannot guarantee the success of any action taken by the firm on your behalf during such litigation with respect to any matter therein ..."(NYSCEF Doc No. 81 at 6). The BSF Retainer states only that the firm "will do our utmost to represent you effectively, professionally and efficiently" (NYSCEF Doc No. 89 at 1). Because "[p]laintiff does not allege that ... defendants breached a promise to achieve a specific result," the breach of contract cause of action must be dismissed (Alphas v Smith, 147 AD3d 557, 558 [1st Dept 2017] [internal quotation marks and citation omitted]).
Plaintiff, in response, maintains that "the approximately $2 million billed to me was unreasonable under the circumstances" (NYSCEF Doc No. 99, ¶ 19), and that she has stated a cause of action for malpractice based, in part, on "defendant's [sic] negligence and fraudulent billing" and their "billing frenzy" (NYSCEF Doc No. 98, ¶ 53). This argument, though, fails to salvage the breach of contract claim.
Generally, where a breach of contract claim arises out of the same facts and seeks the same or similar damages as a legal malpractice claim, the contract claim must be dismissed (see Courtney v McDonald, 176 AD3d 645, 645-646 [1st Dept 2019]; Roth v Ostrer, 161 AD3d 433, 435 [1st Dept 2018]). That said, a breach of contract claim premised upon the assertion that the "defendants overbilled ... and performed unnecessary services ... is not duplicative of the legal malpractice claim" (Ullmann-Schneider v Lacher & Lovell-Taylor, P.C., 121 AD3d 415, 416 [1st Dept 2014]). "The former claim, unlike the latter claim, does not speak to the quality of defendants' work" (id.). Hence, the plaintiff must "reasonably allege that the fee bore no rational relationship to the product delivered" (Johnson v Proskauer Rose LLP, 129 AD3d 59, 70 [1st Dept 2015]). Here, plaintiff's opposition largely consists of complaints about the quality of defendants' work which then led to the purported overbilling. As discussed earlier, complaints about overbilling based on the quality of an attorney's work cannot support a breach of contract claim (see Ullmann-Schneider, 121 AD3d at 416). Thus, defendants' motions to dismiss the first cause of action for breach of contract are granted, and the first cause of action is dismissed. In view of the foregoing, the court need not address whether the breach of contract claim is untimely.
B. The Second Cause of Action for a Violation of Judiciary Law § 487
The second cause of action alleges a violation of Judiciary Law § 487 grounded on defendants' deceitful conduct and a chronic and extreme pattern of legal delinquency.
Judiciary Law § 487 allows for the imposition of civil and criminal penalties against an attorney who "1. [i]s guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party; or, 2. [w]ilfully delays his client's suit with a view to his own gain ...." A cause of action under the statute must be pled with particularity in compliance with CPLR 3016 (b) (see Jean v Chinitz, 163 AD3d 497, 497 [1st Dept 2018]), citing Facebook, Inc. v DLA Piper LLP (US), 134 AD3d 610, 615 [1st Dept 2015], lv denied 28 NY3d 903 [2016]).
Based on the allegations in the complaint, plaintiff seeks recovery for a Judiciary Law § 487 (1) violation. Under Judiciary Law § 487 (1), "the essential elements of a cause of action ... [are] intentional deceit and damages proximately caused by the deceit" (Jean, 163 AD3d at 497). The alleged deceit must have been directed at the court or have occurred during a pending judicial proceeding to which the plaintiff was a party (see Costalas v Amalfitano, 305 AD2d 202, 204 [1st Dept 2003]). It must also be shown that the alleged "deceit reaches the level of egregious conduct or a chronic and extreme pattern of behavior" (Savitt v Greenberg Traurig, LLP, 126 AD3d 506, 507 [1st Dept 2015] [internal quotation marks and citation omitted]; but see Dupree v Voorhees, 102 AD3d 912, 913 [2d Dept 2013]). In addition, the plaintiff must plead that the alleged deceit proximately caused its damages (see Doscher v Mannatt, Phelps & Phillips, LLP, 148 AD3d 523, 524 [1st Dept 2017]).
As applied herein, the complaint fails to adequately plead the elements for a cause of action under Judiciary Law § 487 (1) with the requisite particularity. The complaint describes defendants' intent to deceive in conclusory terms (see Facebook, Inc., 134 AD3d at 615), and does not plead specific facts from which the court may reasonably infer that defendants acted with the requisite intent (see Schiller v Bender, Burrows & Rosenthal, LLP, 116 AD3d 756, 759 [2d Dept 2014]; Agostini v Sobol, 304 AD2d 395, 396 [1st Dept 2003]). Because the statute focuses on the intent to deceive (see Amalfitano v Rosenberg, 12 NY3d 8, 14 [2009]), the second cause of action must be dismissed for failure to plead the element of scienter with particularity (see Doscher, 148 AD3d at 524).
Even assuming the intent element was adequately pled, the complaint fails to articulate how the alleged deceitful acts - the preliminary conference stipulation, the October 15, 2014 email from Kaplan, the work by BSF's out-of-state attorneys, the cancelled mediation, and overbilling - constitute egregious conduct or a chronic and extreme pattern of legal delinquency (see Freeman v Brecher, 155 AD3d 453, 454 [1st Dept 2017]; Chowaiki & Co. Fine Art Ltd. v Lacher, 115 AD3d 600, 601 [1st Dept 2014]; Kaminsky v Herrick, Feinstein LLP, 59 AD3d 1, 13 [1st Dept 2008], lv denied 12 NY3d 715 [2009]).
For example, the documentary evidence utterly refutes three of plaintiff's claims (see Katz v Essner, 136 AD3d 575, 576 [1st Dept 2016]). Plaintiff executed the preliminary conference stipulation, which demonstrates her agreement to the terms contained therein (NYSCEF Doc No. 72, Furman aff, exhibit G at 12). Plaintiff has not alleged that she was misled into signing the stipulation. An examination of Kaplan's email from October 15, 2014 shows that Thomas had been granted custody before that date, as plaintiff acknowledged in her own email dated three days prior (NYSCEF Doc No. 73, Furman affirmation, exhibit H at 3). Plaintiff's own email, therefore, belies her claim that Kaplan's recommendation resulted in plaintiff losing her parental shared custody and visitation rights (NYSCEF Doc No. 99, ¶ 23). Thus, plaintiff cannot establish that the "adverse court rulings in the matrimonial action were based on acts of deceit by defendant attorneys" (Mars v Grant, 36 AD3d 561, 562 [1st Dept 2007], lv denied 9 NY3d 810 [2007]).
Nor did BSF deceive plaintiff or the court in permitting Uno to work on plaintiff's matter. At an appearance before Justice Ecker on November 13, 2014, Thomas's counsel challenged whether Uno's "appearance" constituted the unauthorized practice of law in New York (NYSCEF Doc No. 93, Kunstler affirmation, exhibit F at 3-4). The transcript from the appearance reveals that Justice Ecker permitted Uno to continue "working with the plaintiff's side, provided he does not appear in this case," and stated he could "see no reason why he can't participate with counsel, provided he makes no appearance and states nothing on this record or participates, and no question of witness[es] or argues to this court" (id. at 9-10). Notably, the BSF Retainer also states that James Miller and David Barrett were two of the attorneys likely to work on the Divorce Proceeding (NYSCEF Doc No. 89 at 1).
Plaintiff also complains that defendants failed to observe the Operational Rules of Westchester County Sup Ct Matrimonial Part, rule E (1), (3) and (5) by filing an order to show cause without first requesting a pre-motion conference. Her statement regarding damages, though, is too general, especially when the court, in declining to sign the order to show cause, noted that the application "was filed on February 20, 2014, days before a previously scheduled Trial Ready Conference was held on February 24, 2014" (NYSCEF Doc No. 91, Kunstler affirmation, exhibit D at 1).
The court construes the allegation that Kaplan and BSF "cynically cancelled the Mediation since they sought to continue billing time" (NYSCEF Doc No. 66, ¶ 46) as a claim pled under Judiciary Law § 487 (2). As with the Judiciary Law § 487 (1) claim, this claim is also deficient (see Gotay v Breitbart, 14 AD3d 452, 455 [1st Dept 2005] [dismissing a Judiciary Law § 487 (2) claim where the plaintiff failed "to allege facts showing that any of defendants herein willfully delayed the underlying action with a view to their own gain"]). The statement that defendants sought to delay the Divorce Proceeding for their own gain pleads a bare legal conclusion unsupported by particularized facts (see Fleyshman v Suckle & Schlesinger, PLLC, 91 AD3d 591, 593 [1st Dept 2012], lv denied 19 NY3d 80 [2012] [dismissing a Judiciary Law § 487 claim where the "plaintiff's allegation that the defendants 'willfully delayed [her] recovery with a view to their own ends and benefit' is a bare legal conclusion, 'which is not entitled to the presumption of truth normally afforded to the allegations of a complaint'"] [citation omitted]). Moreover, the documentary evidence seemingly refutes any inference that defendants cancelled the mediation for the sole purpose of willfully delaying the Divorce Proceeding for their own gain. An email addressed to plaintiff dated September 2, 2014 from Charles F. Miller, an attorney at BSF, states that BSF disagreed with the tactic undertaken by Thomas's counsel to "unilaterally proceed" in a particular manner, and that BSF did not believe the parties could engage in a "productive mediation" without Thomas first furnishing plaintiff with the information she had requested in advance of the mediation (NYSCEF Doc No. 70, Furman affirmation, exhibit E at 1). Plaintiff has not pled any specific facts demonstrating the falsity of the reason proffered for the cancellation in her complaint or in her affidavit.
Since plaintiff failed to address the merits of the Judiciary Law § 487 claim in her opposition, "plaintiff's failure to address this issue in its responding brief indicates an intention to abandon this basis of liability" (Gary v Flair Beverage Corp., 60 AD3d 413, 413 [1st Dept 2009]). Consequently, defendants' motions to dismiss the second cause of action for a violation of Judiciary Law § 487 are granted, and the second cause of action is dismissed. The court need not address whether the Judiciary Law § 487 claim is time-barred.
C. The Unpled Legal Malpractice Cause of Action
Defendants correctly point out that the complaint does not formally plead a cause of action for legal malpractice, despite the inclusion of the word "malpractice" twice in the complaint (NYSCEF Doc No. 66, ¶¶ 12 and 17). Nevertheless, "[t]he Court may 'consider affidavits submitted by plaintiffs to remedy any defects in the complaint, because the question is whether plaintiffs have a cause of action, not whether they have properly labeled or artfully stated one'" (Rushaid v Pictet & Cie, 28 NY3d 316, 327 [2016], rearg denied 28 NY3d 1161 [2017] [internal quotation marks and citation omitted]).
As is relevant here, plaintiff relies on her affidavit to supplement the allegations in the complaint. Plaintiff avers that she and Thomas "entered into an oral, on the record agreement in February 2015 which was incorporated but not merged into the May 2015 Judgment of Divorce" (NYSCEF Doc No. 99, ¶ 16). She adds that, "[a]s a result of the multiple ambiguities contained within the settlement agreement, the post-judgment matrimonial proceeding continues to this day, with 18 separate post-judgment motions being filed after the oral settlement agreement and three separate lawsuits filed in New York County Supreme Court" (id., ¶ 18). Plaintiff explains that at least one such lawsuit brought by Thomas and his brother, Scott Kaufman, relates to an unpaid note and mortgage on the marital residence that plaintiff claims defendants failed to address in the settlement negotiations (id., ¶¶ 39 and 41). Notably, plaintiff has also brought suit against Thomas for breach of fiduciary duty, unjust enrichment and rescission of the stipulation of settlement in an action entitled Coplan v Kaufman, Sup Ct, NY County, index No. 152865/2017. In a decision and order dated January 29, 2018, Justice Kathryn E. Freed granted Thomas's motion to dismiss the unjust enrichment claim, but denied dismissal of the other two causes of action, thereby allowing plaintiff to move forward on the breach of duty and rescission claims (NYSCEF Doc No. 68 at 11).
Plaintiff also describes additional acts of alleged negligence by defendants. She avers that Kaplan and BSF failed to dispute the overinflated appraisals of marital jewelry and artwork (NYSCEF Doc No. 99, ¶¶ 24-25); BSF opposed a court recommendation that Thomas convey the marital home to her (id., ¶ 30); the equitable distribution she was to receive does not "add up" (id., ¶ 33); defendants neglected to resolve the issue of the outstanding mortgage on the marital residence (id., ¶ 34); and the settlement negotiated by defendants "made no provision for any type of contingency" if Thomas withheld payment (id., ¶ 38).
As discussed earlier, defendants argue that plaintiff cannot maintain a cause of action for legal malpractice because she voluntarily settled the Divorce Proceeding. Defendants also argue that the complaint fails to plead each element necessary to sustain a malpractice claim.
A cause of action for legal malpractice is predicated upon an attorney's failure "to exercise 'the ordinary reasonable skill and knowledge' commonly possessed by a member of the legal profession" (Darby & Darby, P.C. v VSI Intl., 95 NY2d 308, 313 [2000] [internal citation omitted]). To prevail on a claim for legal malpractice, the plaintiff must demonstrate the existence of an attorney-client relationship (see Barrett v Goldstein, 161 AD3d 472, 473 [1st Dept 2018]). In addition, the plaintiff must plead and prove "the negligence of the attorney; that the negligence was the proximate cause of the loss sustained; and actual damages" (Leder v Spiegel, 31 AD3d 266, 267 [1st Dept 2006], affd 9 NY3d 836 [2007], cert denied sub nom. Spiegel v Rowland, 552 US 1257 [2008] [internal quotation marks and citations omitted]). "An attorney's conduct or inaction is the proximate cause of a plaintiff's damages if 'but for' the attorney's negligence 'the plaintiff would have succeeded on the merits of the underlying action'" (Nomura Asset Capital Corp. v Cadwalader, Wickersham & Taft LLP, 26 NY3d 40, 50 [2015], rearg denied 27 NY3d 957 [2016], quoting AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 [2007]). "[T]he failure to show proximate cause mandates dismissal of a legal malpractice action regardless of whether the attorney was negligent" (Global Bus. Inst. v Rivkin Radler LLP, 101 AD3d 651, 651 [1st Dept 2012] [internal quotation marks and citation omitted]).
"A legal malpractice cause of action 'is viable, despite settlement of the underlying action, if it is alleged that settlement of the action was effectively compelled by the mistakes of counsel'" (Maroulis v Sari M. Friedman, P.C., 153 AD3d 1250, 1251 [2d Dept 2017] [internal quotation marks and citations omitted]; accord Katebi v Fink, 51 AD3d 424, 425 [1st Dept 2008]). "[M]ere speculation about a loss resulting from an attorney's [alleged] poor performance is insufficient" (Chamberlain, D'Amanda, Oppenheimer & Greenfield, LLP v Wilson, 136 AD3d 1326, 1328 [4th Dept 2016], rearg denied 138 AD3d 1513 [4th Dept 2016], lv dismissed 28 NY3d 942 [2016] [internal quotation marks and citation omitted]). Absent such a showing, a cause of action for legal malpractice will be dismissed (see Maroulis, 153 AD3d at 1251).
Here, the documentary evidence refutes the cause of action for legal malpractice (see Katz, 136 AD3d at 576; Schloss v Steinberg, 100 AD3d 476, 476 [1st Dept 2012]; Harvey v Greenberg, 82 AD3d 683, 683 [1st Dept 2011]; Katebi, 51 AD3d at 425). Plaintiff's averments that she "did not understand the oral agreement" and that "Kaplan and defendant BSF were aware that I did not understand the oral settlement agreement" (NYSCEF Doc No. 99, ¶ 17) are clearly contradicted by her sworn testimony before the court in the Divorce Proceeding. According to the transcript of the court's allocution, plaintiff testified that her attorneys had answered all her questions, that she was "of sound mind to make a decision," that she was satisfied with her attorneys' representation, and that she agreed to abide by the terms of the stipulation (NYSCEF Doc No. 69 at 7-9). Nothing in the transcript excerpts of the allocution or in plaintiff's affidavit indicate that she was "coerced into settling" (Glenwayne Dev. Corp v James J. Corbett, P.C., 175 AD3d 473, 474 [2d Dept 2019], lv denied 35 NY3d 903 [2020] [collecting cases]).
Moreover, plaintiff raised this same issue of disavowing her prior sworn testimony in the action before Justice Freed. In the decision partially granting Thomas's dismissal motion, Justice Freed rejected the argument. Importantly, the court's decision reads, in part:
"[T]the minutes of the court's careful allocution of the plaintiff demonstrate her understanding of the Stipulation. In view of the foregoing, plaintiff's claim that she did not comprehend the terms of the Stipulation is refuted by the record, and, therefore, fails to provide any basis for setting aside the Stipulation .... Further, the court's thorough allocution, which was confirmed by Kaplan, her prior counsel, belies the plaintiff claims Kaplan made, i.e., that she (Kaplan) was aware that plaintiff did not understand the Stipulation. Additionally, plaintiff fails to allege a basis for any claim against defendant [Thomas] based on the purported incompetence of an alleged unlicensed employee of her prior counsel's firm"(NYSCEF Doc No. 68 at 7-8). Plaintiff and Thomas have filed a stipulation discontinuing the action with prejudice, and Justice Freed has since denied plaintiff's motion to vacate the stipulation of discontinuance (NYSCEF Doc No. 96, stipulation of discontinuance, and NYSCEF Doc No. 179, decision and order dated August 14, 2019, in Coplan v Kaufman, Sup Ct, NY County, index No. 152865/2017). No notice of appeal has been filed. Thus, defendants are entitled to dismissal of the unpled legal malpractice cause of action against them. As such, the court shall not address whether the legal malpractice claim is untimely or whether the complaint fails to state a cause of action for legal malpractice.
The court may take judicial notice of official court records (see Kinberg v Kinberg, 85 AD3d 673, 674 [1st Dept 2011]).
D. Arbitration of Plaintiff's Claims against BSF
In light of the dismissal of the complaint, the court also need not determine whether the arbitration provision in the BSF Retainer applies, or whether the retainer agreement is enforceable.
Accordingly, it is
ORDERED that motion of defendants Bender & Kaplan, P.C., Dina Kaplan and Joel C. Bender, Esq. P.C. to dismiss the complaint against them (motion sequence no. 005) is granted; and it is further
ORDERED that the motion of defendants Bender & Rosenthal, LLP and Bender Rosenthal Isaacs & Richter LLP to dismiss the complaint against them (motion sequence no. 006) is granted; and it is further
ORDERED that the motion of defendant Boies Schiller Flexner LLP to dismiss the complaint against it (motion sequence no. 007) is granted; and it is further
ORDERED that the complaint is dismissed in its entirety as against all defendants, with costs and disbursements to said defendants as taxed by the Clerk of the Court, and the Clerk is directed to enter judgment accordingly in favor of said defendants. 4/22/2021
DATE
/s/ _________
JAMES EDWARD D'AUGUSTE, J.S.C.