Pascarella v Goldberg, Cohn & Richter, LLP

[*1] Pascarella v Goldberg, Cohn & Richter, LLP 2009 NY Slip Op 52193(U) [25 Misc 3d 1219(A)] Decided on October 23, 2009 Supreme Court, Kings County Hinds-Radix, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on October 23, 2009
Supreme Court, Kings County

Joseph Pascarella, Plaintiff,

against

Goldberg, Cohn & Richter, LLP and Richard S. Goldberg, Defendants.



10612/06



Joseph J. Mainiero, Esq.

Attorney for Plaintiff

335 Broadway, Suite 1108

New York, New York 10113

L'Abbate Balkan, Colavita & Contini, L.L.P.

Attorneys for Defendants

By: Peter D. Rigelhaupt, Esq.

1001 Franklin Avenue

Garden City, New York 11530

Sylvia O. Hinds-Radix, J.

In this legal malpractice action, defendants Goldberg, Cohn & Richter, LLP (the defendant firm)[FN1] and Richard S. Goldberg (defendants) move for an order, pursuant to CPLR 2221 (d), for leave to reargue that portion of this court's April 17, 2009 order which denied that branch of their motion which sought summary judgment, and upon granting such leave, an order, pursuant to CPLR 3212 (b), for summary judgment dismissing the complaint of plaintiff Joseph Pascarella (plaintiff).

Factual Background and Contentions

The Underlying Matrimonial Action

In May 2002, plaintiff retained attorney Richard S. Goldberg (Goldberg) and the [*2]defendant firm to represent him in an ongoing out-of-court matrimonial dispute with his wife, Susan, after the attempts by Divorce Mediation Services of Staten Island to resolve their marital differences had failed.[FN2] In September 2002, Susan commenced in this court a matrimonial action seeking a judgment of absolute divorce in her favor and the ancillary relief in the form of, inter alia, "[a] determination of the respective rights of the parties in their separate and martial property, and providing for an equitable distribution of their marital property, including a distributive award to [Susan] as required,""[a]n order providing for an award of maintenance," and "[a]n order regarding the custody and support of the [two] infant children of the marriage" (see Susan Pascarella v Joseph Pascarella (Index No. 35090/2002 [Sup Ct, Kings County] [the matrimonial action]).[FN3]

During the matrimonial action, the relationship between plaintiff and Susan became so acrimonious that orders to show cause, compliance conferences, and hearings were routine. To make matters worse, in March 2003, plaintiff was indicted by the Grand Jury of Kings County on four counts of criminal solicitation of Susan's murder and released from custody on a $100,000 bail bond[FN4] (see People v Joseph Pascarella, Indictment No. 1792/2003 [Sup Ct, Kings County] [the criminal case]).[FN5] On May 28, 2003, the Hon. Neil Jon Firetag of the Criminal Term of the Supreme Court, Kings County, upheld the legal sufficiency of plaintiff's indictment: "The Court has read the Grand Jury minutes in camera. The evidence adduced before the Grand Jury was legally sufficient to establish the finding of the indictment [citations omitted]. Moreover, the Assistant District Attorney correctly charged the Grand Jury with respect to the applicable law. Further, reduction of any count of the indictment is not warranted."[*3]

On November 3, 2003, or more than one year in the course of the matrimonial action, the parties entered into a stipulation which was placed on the record in open court before the Hon. Virginia E. Yancey. The stipulation granted Susan a judgment of divorce based upon plaintiff's abandonment of Susan for a period of one or more years. Justice Yancey, however, directed that no judgment of divorce was to be entered until the ancillary issues of equitable distribution, child support, and maintenance were resolved, and set December 15, 2003 as a trial date.[FN6]

In connection with the upcoming trial, plaintiff provided Susan with a "Statement of Proposed Disposition," in accordance with 22 NYCRR § 202.16 (h), listing "the assets claimed to be marital property" and "the proposal for equitable distribution."[FN7] The following table helps visualize plaintiff's proposal for equitable distribution (§§ [A], [E] [1]):

Shortly before preparing the foregoing statement, plaintiff had offered Susan $300,000 in full settlement of her equitable distribution claim.[FN8] This was in response to Susan's earlier offer of $450,000.[FN9] Susan's offer was higher than plaintiff's because it included the following amounts totaling $167,697.39, which plaintiff either inexplicably failed to include altogether, or calculated incorrectly, in his Statement of Proposed Disposition:[FN10]

One-half of the value of the house at 2053 East 61st Street, which plaintiff conceded was marital property but did not propose to distribute to Susan. This house was valued by a third-party appraiser at $310,000 in September 2002[FN11] and thus Susan's share would have been $155,000 (½ of $310,000), minus $29,200 in adjustments requested by plaintiff, for a net amount of $125,800.

One-half of the post-marital increase in the value of the cooperative apartment at 299A Bay 19th Street, which was plaintiff's separate property that he did not want to distribute to Susan. An independent appraiser valued the apartment at $35,000-$40,000 at the commencement of the marriage in July 1984, and at $100,000 as of September 2002.[FN12] Susan's share would have been one-half of the difference between $100,000 and $40,000, or $30,000.[FN13]

One-half of the value of plaintiff's pensions, which plaintiff valued at $47,000, but which was valued by an independent pension consultant at $70,794.78 as of September 5, 2002.[FN14] If the consultant's valuation were used, Susan's ½ share of plaintiff's pensions would have increased from $23,500 as proposed by plaintiff, to $35,397.39 as evaluated by the consultant, for a net additional amount of $11,897.39.

TOTAL: $167,697.39

On December 15, 2003, on the eve of trial on the ancillary issues in the matrimonial action, the parties entered into a stipulation of settlement (the settlement) which was placed on the record in open court before Justice Yancey. The settlement fixed Susan's equitable distribution award at $400,000 and required that plaintiff pay it to her in lump sum by March 1, 2004.[FN15] In connection with the settlement, plaintiff testified under oath before Justice Yancey that (1) he heard and understood the terms of the settlement as it was placed on the record; (2) he discussed its terms with his lawyer (Mr. Goldberg), had enough time [*4]to speak with his lawyer about it, and required no additional time; (3) he was satisfied with the services of his lawyer; (4) he was not forced, threatened, or coerced to enter into the settlement; (5) the terms of the settlement were acceptable to him; and (6) he promised to live by its terms.[FN16] Also on December 15, 2003, plaintiff and Susan re-affirmed their agreement to the settlement by executing before a notary public an "Affidavit of Appearance and Adoption of Oral Stipulation," in which they each acknowledged that the issues in the matrimonial action were disposed of by settlement placed on the record in open court, that the terms thereof "were fully explained and understood and that said terms were freely and voluntarily agreed to without force, fraud or duress and with advice of counsel."

The settlement on December 15, 2003 was reached while the criminal case against plaintiff was pending. On January 26, 2004, plaintiff was convicted, upon his plea of guilty, of one count of criminal solicitation in the fourth degree (a misdemeanor) and sentenced to five years' probation.

On April 5, 2004, Justice Yancey signed the Judgment of Divorce, which dissolved the marriage between the parties, and further ordered and adjudged that: "[T]he Settlement Agreement entered into between the parties on November 3rd, 2003 and on December 15, 2003, transcripts of which are on file with this Court and incorporated herein by reference, shall survive and shall not be merged into this judgment, and the parties are hereby directed to comply with all legally enforceable terms and conditions of said agreements as if such terms and conditions were set forth in their entirety herein . . ."[FN17]

On June 10, 2004, Susan brought on an order to show cause to compel the payment of her equitable distribution award. In opposition, plaintiff (then represented by his current counsel, Joseph J. Mainiero) argued that the terms and conditions of the Judgment of Divorce, which incorporated the settlement, were "one-sided and unconscionable" and, if enforced, would make plaintiff a public charge.[FN18] Moreover, plaintiff contended that the settlement "should be vacated because at the time of the settlement [he] was suffering from an impaired mental state including being under the influence of the prescription drug Xanax," an anti-anxiety medication.[FN19] In the event that the settlement were not set aside, plaintiff requested a modification of the equitable distribution award, maintenance, and child support [*5]as a result of an extreme hardship in supporting himself and Susan.[FN20] This dispute was ultimately resolved by a "Stipulation of Settlement," dated as of October 1, 2004, which recited that plaintiff had already paid Susan $362,813.38 of the $400,000 equitable distribution award, and required plaintiff to pay the balance, with interest thereon, in specified monthly installments beginning in November 2004, except that plaintiff had an option to pay the entire balance owed by September 15, 2005, in which case additional interest thereon would be waived. On June 21, 2005, the parties' respective counsel entered into a supplemental stipulation of settlement which was placed on the record in open court before the Hon. Louise Gruner Gans. The supplemental stipulation modified the October 1, 2004 stipulation by fixing the balance of the equitable distribution award at $21,373.39.[FN21] There was no further litigation in the matrimonial action concerning the equitable distribution award, thus suggesting that plaintiff ultimately paid Susan the full amount of $400,000.

On February 28, 2006, plaintiff's original sentence in the criminal case was revoked. He was re-sentenced to a conditional discharge for a one-year period, an order of protection for Susan for a three-year period, and $120 in surcharges and fees.

The Instant Action

In April 2006, plaintiff commenced this action against Goldberg and the defendant firm asserting legal malpractice (the first cause of action) and breach of contract and implied covenant of good faith and fair dealing (the second cause of action), in connection with Goldberg's representation of plaintiff in the matrimonial action. Plaintiff's legal malpractice claim against Goldberg and the defendant firm is based on two instances of alleged negligence. First, plaintiff claims that Goldberg failed to conduct necessary discovery, including taking Susan's examination before trial, to determine if she had any separate assets. Second, plaintiff claims that Goldberg improperly advised and pressured him into agreeing to the settlement. As to the second instance of alleged negligence, plaintiff elaborates that (1) he had certain separate, non-marital property that was not subject to equitable distribution, consisting of a separately owned cooperative apartment, a settlement for his personal injury action, and some property inherited from his mother; (2) Goldberg failed to request Justice Yancey to have such separate property declared separate and not subject to equitable distribution; (3) the settlement was detrimental to his interests because it converted plaintiff's separate property into marital property subject to equitable distribution; (4) plaintiff agreed to the settlement in reliance upon Goldberg's skill and expertise as a matrimonial attorney, not knowing that such settlement would award Susan his separate property to which she would not otherwise be legally entitled; (5) if he had known or had been advised by Goldberg that his separate property was not subject to equitable distribution, he would never have agreed to the settlement; and (6) as a result of Goldberg's negligence, he agreed to the [*6]settlement and "gave away far more than he reasonably should have," although he does not specify the actual damages he allegedly sustained. In May 2006, defendants interposed an answer asserting as one of their affirmative defenses "plaintiff's knowing and voluntary settlement and allocution in the underlying [matrimonial] action."

In August 2008, defendants moved, pursuant to CPLR 3212, for summary judgment dismissing the complaint in its entirety or, in the alternative, pursuant to CPLR 3126, dismissing the complaint based upon plaintiff's alleged failure to comply with certain orders directing discovery.[FN22] In support of the summary judgment branch of their motion, defendants submitted Goldberg's affidavit, dated August 11, 2008, stating, in relevant part, that: "[O]n December 15, 2003, the parties appeared before Justice Yancey who directed that the wife's counsel begin to take testimony on the issues pertaining to the equitable distribution of the parties' assets. However, before any testimony was actually taken the parties were able to reach a settlement whereby the plaintiff agreed to pay his wife the lump sum of $400,000, together with $1,000 per month in total child support and $500 per month in maintenance for a period of three years."The settlement that was reached was the product of extensive negotiations, and . . . there were numerous efforts to settle prior to December 15, 2003. The plaintiff was present during all the negotiations that took place on December 15th, and consented to all of the terms of the settlement after careful consideration. The plaintiff advised me that he had the financial resources to enter into the settlement, and in fact had agreed to make the $400,000 lump sum payment by [March] 1, 2004 . . ." (¶¶ 11-12).

In opposition to the summary judgment branch of defendants' motion, plaintiff submitted an affidavit, dated December 5, 2008, in which he contended that the motion should be denied as there were triable issues of material fact. Plaintiff averred that he specifically instructed Goldberg that he did not "voluntarily want to give away his personal separate properly" (¶ 13). According to plaintiff, "Mr. Goldberg implored me to accept the lopsided settlement. He told me if I didn't take the deal my wife would get even more" (¶ 14). Plaintiff complained that "he felt in the dark and out of touch with the settlement process," that he was not present during all negotiations, including discussions on the settlement, child support, and custody issues, that "[o]n the day [he] was forced to accept the settlement Mr. Goldberg returned from the judge[']s chambers saying you have to give her [*7]half of everything' and if you don't take this offer she will get even more' (¶ 15), and that "$400,000 was basically all of [his] property including a co-op apartment [he] bought and paid for in full before [his] marriage, [his] personal injury settlement in which no claim was made for loss of service, and [his] inheritance from [his] late mother, plus [his] marital property (¶ 14). He maintained that Goldberg coerced him into settling the matrimonial action, advised him to release large sums of non-marital funds and equity, and generally gave him "fraudulent and incorrect advi[c]e" (¶ 20).

In reply, defendants reiterated their position that plaintiff had failed to raise any triable issue of material fact that warranted the denial of their motion, and had failed to establish that the outcome of the matrimonial action would have been more favorable for plaintiff but for Goldberg's alleged negligence. Goldberg submitted his reply affidavit, dated December 31, 2008, noting that "plaintiff does not dispute that he authorized me to try and settle the equitable distribution claims for $300,000 but that his wife rejected such offers" (¶ 4).

By decision and order, dated April 17, 2009 (the August 17th order), the court denied that branch of defendants' motion which was for summary judgment, concluding that: "[D]efendants' motion for summary judgment pursuant to CPLR 3212 is premature at this juncture. Defendants contend that despite several requests, they have not been provided information as to the specific separate property that the plaintiff alleges to have given his former wife in connection with the underlying settlement, which is relevant to the plaintiff's allegations. In making this concession, defendants have themselves demonstrated that the motion for summary judgment is premature" (at 6).

On May 12, 2009, defendants appealed to the Appellate Division, Second Department that portion of the August 17th order which denied them summary judgment. On May 29, 2009, defendants moved for leave to reargue.

Discussion

Defendants' Request for Leave to Reargue

CPLR 2221 (d) (2) provides that "[a] motion for leave to reargue "shall be based upon matters of fact or law allegedly overlooked or misapprehended by the court in determining the prior motion, but shall not include any matters of fact not offered on the prior motion."[FN23] "Motions for reargument are addressed to the sound discretion of the court which decided the prior motion and may be granted upon a showing that the court overlooked or [*8]misapprehended the facts or law or mistakenly arrived at its earlier decision" (Viola v City of New York, 13 AD3d 439, 440 [2d Dept 2004], lv denied 5 NY3d 706 [2005]). Here, defendants' motion for reargument is based upon their assertion that the court misapprehended matters of fact in denying their motion. According to defendants, the summary judgment branch of their motion was not in any manner predicated upon the fact that defendants had "not been provided information as to the specific property that plaintiff alleges to have given his former wife in connection with the underlying settlement." Rather, defendants contend, plaintiff's discovery violations constituted a separate and alternative ground for dismissal of the complaint. Based upon a review of the record, the court exercises its discretion and grants defendants leave to reargue (see Viola, 13 AD3d at 440 [2d Dept 2005]).

Plaintiff's Legal Malpractice Claim (the First Cause of Action)

The burden on a motion for summary judgment rests initially upon the moving party to come forward with sufficient proof in admissible form to enable a court to determine that he is entitled to judgment as a matter of law. If this burden cannot be satisfied, the court must deny the relief sought (see CPLR 3212 [b]; Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). Once a moving party has made a prima-facie showing of its entitlement to summary judgment, "the burden shifts to the opposing party to produce evidentiary proof in admissible form sufficient to establish the existence of material issues of fact which require a trial of the action" (Garnham & Han Real Estate Brokers v Oppenheimer, 148 AD2d 493, 494 [2d Dept 1989]; see also Zuckerman, 49 NY2d at 562). Mere conclusory statements, expressions of hope, or unsubstantiated allegations are insufficient to defeat the motion (see Gilbert Frank Corp. v Federal Ins. Co., 70 NY2d 966, 967 [1988]).

"In order to sustain a claim for legal malpractice, a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff, and that the plaintiff would have succeeded on the merits of the underlying action but for' the attorney's negligence" (Leder v Spiegel, 9 NY3d 836, 837 [2007], cert denied 128 S Ct 1696 [2008] [internal quotation marks and citation omitted]). "A settlement of the underlying claim does not preclude a subsequent action for legal malpractice where the settlement was effectively compelled by the mistakes of counsel" (Rau v Borenkoff, 262 AD2d 388, 389 [2d Dept 1999]). As to damages, actual damages must be proved. Mere speculation of a loss resulting from an attorney's alleged omissions is insufficient to sustain a prima-facie case sounding in legal malpractice (see Luniewski v Zeitlin, 188 AD2d 642, 643 [2d Dept 1992]).

"On a motion for summary judgment to dismiss the [legal malpractice] action, a defendant must proffer admissible evidence establishing that the plaintiff is unable to prove at least one of the essential elements of his or her case" (Suydam v O'Neill, 276 AD2d 549, 549 [2d Dept 2000]; see also Allen v Potruch, 282 AD2d 484 [2d Dept 2001]). The court concludes that Goldberg and the defendant firm have satisfied this burden. [*9]

Plaintiff's first charge of malpractice is that Goldberg was negligent in failing to seek discovery from Susan concerning her non-marital property. The court notes that plaintiff and Susan were married from July 28, 1984 until September 1, 2001, when plaintiff abandoned the marital home, and thus were together for 17 years.[FN24] Yet, plaintiff has never claimed in any of his numerous affidavits filed in this action or in the matrimonial action that Susan had any non-marital property. Nor has plaintiff submitted to the court Susan's Statement of Proposed Disposition, which was to indicate if she had any separate property. There is not one iota of evidence that suggests that Susan had any separate property. To the contrary, the gravamen of plaintiff's legal malpractice claim is that plaintiff overpaid Susan because he used his own separate property, and not because Susan already had too much on account of her own separate property. Without some evidence of actual, ascertainable damages flowing from Goldberg's alleged failure to conduct discovery, this branch of plaintiff's legal malpractice claim fails (see Luniewski, 188 AD2d at 643).

Plaintiff's second charge that the settlement was coerced or fair has no merit. As stated, the matrimonial action was scheduled for trial on the equitable distribution issue when the parties entered into a settlement of $400,000, which was higher than plaintiff's counter-offer of $300,000 and lower than Susan's initial offer of $450,000. Plaintiff took the stand where he was allocuted on the settlement. He testified that he understood the settlement, wanted to accept it, and was satisfied with Goldberg's services as his counsel. Plaintiff's allegations in support of his claim that the settlement was a product of coercion or duress are inherently incredible and flatly contradicted by documentary evidence, including (1) the minutes of Justice Yancey's careful and thorough allocution of plaintiff, during which he showed no sign that he was compelled to enter into the settlement, and (2) his "Affidavit of Appearance and Adoption of Oral Stipulation," in which he acknowledged that the terms of the settlement were fully explained to and understood by him, and that he consented to its terms voluntarily and with advice of counsel (see Kinberg v Kinberg, 50 AD3d 512, 513 [1st Dept 2008]).

In DeGregorio v Bender (4 AD3d 384 [2d Dept 2004]), the plaintiff/wife contended that her former matrimonial counsel failed to appraise certain marital assets, including her former husband's pension. The motion court denied the attorney defendants' request for summary judgment, holding that "[t]here are serious questions as to why certain marital assets were not considered or appraised and [d]efendants do not address this issue" (DeGregorio v Bender, 2002 WL 34465904 [Sup Ct, Westchester County 2002]). In reversing the motion court and dismissing the complaint, the Appellate Division, Second Department, held (at page 385): "In the stipulation, which was read into the record in open court, the parties explicitly acknowledged that they had been advised by their respective [*10]attorneys of their right to disclosure regarding the value of their property and business interests, that certain disclosure had been conducted, and that to the extent it had not been conducted, they waived their right to any further disclosure. In response to questions from the Supreme Court, the plaintiff further acknowledged that she participated in the negotiation of the agreement and understood its terms, that no one had forced her into the agreement, and that she wanted the court to approve the settlement. The plaintiff's claims in this action are belied by the terms of the stipulation and her approval of those terms in open court. Consequently, the Supreme Court should have granted the [attorneys'] motion [for summary judgment]."[FN25]

As a matter of policy, cases once settled should not be readily re-litigated as to their merits before another judge, where the original party has been released and the plaintiff's original attorney has become the defendant. "Under those circumstances, the burden must be on the plaintiff seeking such a recovery to demonstrate by evidence rather than by conclusory allegations, that he indeed suffered substantial financial loss because of misdeeds by his attorneys and not by second guessing as to their judgment" (Becker v Julien, Blitz & Schlesinger, P.C., 95 Misc 2d 64, 68 [Sup Ct, New York County 1977], modified on other grounds 66 AD2d 674 [1st Dept 1978], appeal dismissed 47 NY2d 705 and 761 [1979], lv dismissed 47 NY2d 800 [1979]).

In this case, the settlement reached by Goldberg on plaintiff's behalf was reasonable from both the financial and legal points of view. The settlement amount of $400,000 fell within the range of the parties' prior offers. More importantly, if the court were to accept the $224,000 equitable distribution calculation made by plaintiff in his Statement of Proposed Disposition and add to it $167,697.39, which the court has earlier identified as the sum of the three items which Susan correctly claimed plaintiff had failed to include or incorrectly valued in his Statement, the total amount due to Susan would have been $391,697.39, which is very close to the $400,000 settlement. It is, therefore, evident that the settlement negotiated by Goldberg on the eve of trial of the matrimonial action was fair (see Popescu v McCarthy, 271 AD2d 204, 205 [1st Dept 2000], lv denied 95 NY2d 758 [2000]).

Moreover, the settlement did not take into account plaintiff's marital fault. However, in the absence of the settlement, plaintiff would have proceeded to trial, in which case Justice Yancey would have been permitted to consider plaintiff's then-pending indictment for [*11]criminal solicitation to murder Susan as an additional factor in awarding her equitable distribution. Although the marital fault of a party, as a rule, is not a relevant consideration for determining equitable distribution, marital fault may be considered in limited circumstances pursuant to the "catch-all" provision of Domestic Relations Law § 236 (B) (5) (d) that allows the court to take into account "any other factor which the court shall expressly find to be just and proper" (Howard S. v Lillian S., 62 AD3d 187, 190 [1st Dept 2009]). Such limited circumstances involve the misconduct that " is so egregious or uncivilized as to bespeak of a blatant disregard of the marital relationship — misconduct that shocks the conscience' of the court[,] thereby compelling it to invoke its equitable power to do justice between the parties'" (id. at 191, quoting Blickstein v Blickstein, 99 AD2d 287, 292 [2d Dept 1984], appeal dismissed 62 NY2d 802 [1984]). For a clear example of the egregious misconduct, the Appellate Division, Second Department, in Blickstein cited to D'Arc v D'Arc (164 NJ Super 226 [Ch Div 1978], mod on other grounds 175 NJ Super 598 [App Div 1980], certif denied 85 NJ 487 [1980], cert den 451 US 971 [1981]), in which the New Jersey Superior Court considered the fact that during the pendency of the divorce proceedings the husband had offered $50,000 for the murder of his wife. As the D'Arc court stated (at page 241), "where a spouse has committed an act so evil and outrageous that it must shock the conscience of everyone, it is inconceivable that this court should not consider his conduct when distributing the marital assets equitably" (see also Brancoveanu v Brancoveanu, 145 AD2d 395, 399 [2d Dept 1988] ["We agree that a great injustice would result if the husband, who unsuccessfully contrived to have his wife murdered, was granted an award of a portion of the value of her dental practice"], app dismissed 73 NY2d 994 [1989], cert denied 502 US 854 [1991]); Gordon v Gordon, NYLJ, Mar. 10, 1992, at 22, col 5 [Sup Ct, New York County] ["the claim of egregious marital fault, as opposed to economic fault, is supported by (the wife's) attempt to hire someone to do harm to (the husband) and his companion"]).

Under the fairly unique circumstances of the matrimonial action involving plaintiff's then-pending felony indictment for soliciting to murder Susan, Goldstein's advice to plaintiff to settle her equitable distribution claim, rather than to proceed to trial, was one among reasonable courses of action in defending plaintiff (see Rosner v Paley, 65 NY2d 736, 738 [1985] [attorneys are free to select one among reasonable courses of action in prosecuting their clients' cases without thereby exposing themselves to liability for malpractice]). It cannot be disputed that if the trial of the matrimonial action had actually been held, Justice Yancey could have considered plaintiff's indictment as an additional factor in Susan's favor in determining her equitable distribution award.[FN26] Plaintiff has failed to point to any evidence [*12]in the record indicating that he would have been subject to a lower equitable distribution award in the matrimonial action but for Goldberg's allegedly erroneous/incomplete advice to accept the settlement (see Jaffe & Asher LLP v Ross, 6 AD3d 357, 358 [1st Dept 2004], lv dismissed 3 NY3d 656 [2004]).

In another case involving a choice between different legal strategies, the Appellate Division, Second Department, dismissed on summary judgment a client's malpractice claim against his attorney for making, what the client claimed to be, a wrong choice (see Holschauer v Fisher, 5 AD3d 553 [2d Dept 2004]). In Holschauer, the defendant attorney reviewed his litigation strategy with the plaintiff, a physician who was facing disciplinary charges, as to whether to proceed to a hearing which most likely would have resulted in revocation of the plaintiff's medical license, or to accept the commission's offer for a one-year suspension of his license to practice medicine, a five-year probationary period thereafter, and a two-year period during which he would be monitored by a practice supervisor. The physician accepted the commission's offer. Thereafter, he commenced an action against his former attorney to recover damages for legal malpractice, claiming that he was unable to obtain approval for a practice supervisor and that the defendant attorney should have negotiated a better settlement for him by obtaining pre-approval of his practice supervisor. He claimed that if his medical license had been revoked as a result of the hearing, he could have nevertheless re-applied for it after three years had elapsed and thus could have been able to practice medicine without supervision. The Appellate Division, Second Department, dismissed the plaintiff's claim, holding that "[w]hile the plaintiff poses an alternative strategy which might have been pursued by the defendant, the selection of one among several reasonable courses of action does not constitute malpractice" (id. at 554 [internal quotation marks and citation omitted]).

In sum, defendants have made a prima-facie showing that Goldberg did not commit legal malpractice. In opposition, plaintiff has failed to produce any evidentiary proof in admissible form sufficient to require a trial of material questions of fact on which he rests his claim (see Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). When read in conjunction with the evidentiary record, including a stipulation of settlement entered into in open court, plaintiff's allegations of Goldberg's malpractice are insufficient and unsubstantiated, without any proof of actual damages suffered (see Choi v Dworkin, 230 AD2d 780, 782 [2d Dept 1996], lv denied 89 NY2d 805 [1996]). Although summary judgment is a drastic remedy because it deprives the litigant of his day in court, the case should be summarily decided where, as here, there is no genuine issue to be resolved at trial, as "an unfounded reluctance to employ the remedy will only serve to swell the Trial Calendar and thus deny to other litigants the right to have their claims promptly adjudicated" (Andre v Pomeroy, 35 NY2d 361, 364 [1974]).

Lastly, the court notes that plaintiff initially had challenged the validity of the settlement in the matrimonial action because it was "one-sided and unconscionable," but later withdrew his objections in the matrimonial action and elected to abide by the terms of the [*13]settlement, as reflected in the stipulation of October 1, 2004. Plaintiff's ratification of the settlement and his acceptance of its terms for a period in excess of one year in the matrimonial action effectively bars a collateral attack on the settlement in this action (see Hirsch v Hirsch, 134 AD2d 485 [2d Dept 1987]). Accordingly, that branch of defendants' motion for summary judgment dismissing plaintiff's legal malpractice claim is granted.

Plaintiff's Breach of Contract Claim (the Second Cause of Action)

Plaintiff's second cause of action for breach of contract and implied covenant of good faith and fair dealing is duplicative of the legal malpractice claim as there is no evidence of any promise by defendants to obtain a specific result (see Maunoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303 AD2d 561, 562 [2d Dept 2003]). Moreover, this cause of action is meritless because the terms of the retainer agreement are not set out in the complaint and, in any event, the retainer agreement does not promise a specific result (see Steiner v Lazzaro & Gregory, P.C., 271 AD2d 596, 597 [2d Dept 2000]). Accordingly, plaintiff's second cause of action is also dismissed.

Conclusion

In sum, the court rules, as follows:

(1)Defendants' motion for an order, pursuant to CPLR 2221 (d), for leave to reargue that portion of this court's April 17, 2009 order which denied that branch of their motion for summary judgment is granted.

(2)Upon reargument, that portion of this court's April 17, 2009 order which denied that branch of defendants' motion for summary judgment is hereby vacated.

(3)That branch of defendants' motion for summary judgment is granted and the complaint is dismissed in its entirety.

This constitutes the decision, order, and judgment of the court.

ENTER,

J. S. C. Footnotes

Footnote 1: All references to the defendant firm includes Goldberg & Cohn, LLP, the predecessor to Goldberg, Cohn & Richter, LLP.

Footnote 2: See Exhibit J (an unsigned memorandum of understanding, dated Dec. 10, 2001). All exhibit references are to the exhibits to defendants' motion for summary judgment.

Footnote 3: Copies of various stipulations, the judgment of divorce, and the statement of proposed disposition in the matrimonial action are attached as exhibits to defendants' motion for summary judgment and are part of the record in this case. In addition, the court takes judicial notice of the contents of the court file in the matrimonial action to fill evidentiary gaps (see e.g. People v Burnside, 13 Misc 3d 649, 652 n * [Sup Ct, New York County 2006] [a court may take judicial notice of its own records in another action in the same court] [citing Matter of Ordway, 196 NY 95, 97 [1909]; People v Dritz, 259 App Div 210, 211 [2d Dept 1940]).

Footnote 4: These charges consisted of two counts of criminal solicitation in the second degree (Penal Law § 100.10), a class D felony, and an additional two counts of criminal solicitation in the fourth degree (Penal Law § 100.05 [1]), a class A misdemeanor.

Footnote 5: See Exhibit B (the indictment and the felony complaint). The court takes judicial notice of the contents of the court file in the criminal action.

Footnote 6: Certified transcript of hearing held before Justice Yancey on November 3, 2003, at 10, 15. Defendants have submitted to this court an uncertified transcript of that hearing. The citation herein is to the certified transcript contained in the matrimonial action file.

Footnote 7: See Exhibit K (Plaintiff's Statement of Proposed Disposition, dated Sept. 30, 2003).

Footnote 8: Actually, plaintiff made two separateoffers of $300,000. See Exhibit S (Letter, dated Sept. 11, 2003, from Goldberg to Michael A. Zimmerman [Susan's counsel]); Exhibit R (facsimile note, dated July 29, 2003, from Goldberg to Zimmerman).

Footnote 9: See Exhibit T (Letter, dated Aug. 13, 2003, from Zimmerman to Goldberg).

Footnote 10: See Exhibit Q (Letter, dated Jan. 10, 2003, from Zimmerman to Goldberg), Items (b), (c), and (d).

Footnote 11: See Exhibit O (Appraisal Report by Neglia Appraisal, Inc., dated April 10, 2003) at 1.

Footnote 12: Id. at 2.

Footnote 13: Although plaintiff's interest in his cooperative apartment constituted his separate property, Susan may have had a valid claim to the appreciated portion of that interest during marriage (see e.g. Scammacca v Scammacca, 15 AD3d 382, 383 [2d Dept 2005] ["Since the plaintiff directly and indirectly contributed to the increase in value of the property by assisting the defendant in the business and as a homemaker, the appreciation is considered marital property for the purpose of equitable distribution"]; Boglia v Greenberg, 2008 WL 2185363, 2008 NY Slip Op 31416 [U] [Sup Ct, Nassau County 2008] ["while the plaintiff (former client) alleges that the defendants erroneously advised her as to whether she was entitled to equitable distribution of her husband's property's increase in value, the defendants established as a matter of law that she had a valid claim to it"]).

Footnote 14: See Exhibit P (Valuation Report by Lexington Pension Consultants, Inc., dated Feb. 6, 2003).

Footnote 15: See Exhibit H (Certified transcript of hearing held before Justice Yancey on Dec. 15, 2003) at 6-7.

Footnote 16: Id. at 12-13.

Footnote 17: See Exhibit I (Judgment of Divorce).

Footnote 18: Affirmation in Opposition of Joseph J. Mainiero, dated August 12, 2004, ¶¶ 2-4.

Footnote 19: Id. at ¶¶ 5-6.

Footnote 20: Id. at ¶ 6.

Footnote 21: Certified transcript of hearing held before Justice Gans on June 21, 2005, at 7.

Footnote 22: The Central Compliance Part Order of December 4, 2007 directed plaintiff to file a note of issue by February 15, 2008. No note of issue has been filed to date. Accordingly, defendants' request for summary judgment was timely.

Footnote 23: CPLR 2221 (d) (3) provides that a motion for leave to reargue "shall be made within thirty days after service of a copy of the order determining the prior motion and written notice of its entry." The court's review of the clerk's minutes in this case does not indicate that the August 17th order has ever been served with notice of entry. Thus, defendants' motion for leave to reargue is timely.

Footnote 24: See Justice Yancey's Findings of Fact and Conclusions of Law, dated April 5, 2004, Findings of Fact, ¶¶ Third and Eighth.

Footnote 25: Similarly, in Pacella v Whiteman Osterman & Hanna (14 AD3d 545 [2005]), the Appellate Division, Second Department, held that the Supreme Court properly granted that branch of the defendant's motion which was to dismiss a claim for legal malpractice based upon documentary evidence, stating "[t]he defendant submitted the transcript of the court proceedings memorializing the terms of the stipulation of settlement of the underlying litigation, in which the defendant represented the plaintiff, which contradicted the claim of malpractice" (id. at 545-546).

Footnote 26: Plaintiff's characterization of the criminal case as "unfounded" misses the point. Although the criminal case against plaintiff was later resolved by a sentence of conditional discharge, on the eve of trial of the matrimonial action, he was facing two serious felony charges and his prior effort to dismiss the indictment had been rebuffed by Justice Firetag.