CAROLE SHULMAN WILDES v. SHELDON M. LIEBOWITZ, ESQUIRE et al.

 

NOT FOR PUBLICATION WITHOUT THE

APPROVAL OF THE APPELLATE DIVISION

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-4905-04T24905-04T2

CAROLE SHULMAN WILDES,

formerly known as

CAROLE STEIGMAN,

Plaintiff-Appellant,

v.

SHELDON M. LIEBOWITZ, ESQUIRE

and LIEBOWITZ & LIEBOWITZ,

Counselors at Law,

Defendant-Respondent.

______________________________________________

 

Argued September 20, 2006 - Decided November 2, 2006

Before Judges Collester and Baxter

On appeal from New Jersey Superior Court,

Law Division, Bergen County, L-3582-02.

Carole Shulman Wildes, appellant, argued the

cause pro se.

Diana C. Manning argued the cause for

respondents (Bressler, Amery & Ross,

attorneys for respondents; Ms. Manning

and Benjamin J. DiLorenzo, on the brief).

PER CURIAM

Plaintiff appeals from the denial of her motion seeking reconsideration of the summary judgment granted to defendants in a legal malpractice action.

Plaintiff claims that her attorney, defendant Sheldon Liebowitz, failed to secure an adequate settlement in her divorce action by negligently relying on a report which undervalued her ex-husband's medical practice and by defaulting in his obligation to negotiate child support and college tuition payments for her son.

Because we find that plaintiff has failed to demonstrate that the trial court overlooked any relevant matters, or found the facts or applied the law improperly at the time summary judgment was granted, we conclude that the trial court properly denied plaintiff's motion for reconsideration. Town of Phillipsburg v. Block 1508, Lot 12, 380 N.J.Super. 159, 175 (App. Div. 2005). Accordingly, we affirm.

I

Carole Shulman Wildes ("plaintiff") and Elliot Steigman ("Steigman") were married on June 2, 1977. Their son, Shaun, was born in 1979. In April 1994, Steigman filed a complaint for divorce.

On June 22, 1995, plaintiff retained Liebowitz & Liebowitz ("Liebowitz" or "defendants") to represent her in the divorce action. The divorce trial began on March 11, 1996, and a settlement was reached on March 19, 1996. The Judgment of Divorce, which incorporated the settlement agreement, was entered on May 2, 1996.

On April 26, 2002, plaintiff filed a complaint against Liebowitz claiming various breaches of his professional duty. On June 11, 2004, defendants filed a notice of motion for summary judgment, which was granted as unopposed on July 12, 2004, because plaintiff's lawyer believed that plaintiff had agreed to settle her malpractice case.

Thereafter, plaintiff moved to reinstate her complaint claiming that the case was settled without her authorization. Plaintiff's complaint was reinstated on August 6, 2004, by which time plaintiff was pro se. Two of her five claims were voluntarily dismissed, leaving only her claims that Liebowitz committed malpractice by undervaluing her ex-husband's medical practice and failing to negotiate child support and college tuition payments.

The trial court again granted summary judgment to defendants in a sixteen page written opinion on November 5, 2004, and an order to that effect was entered on November 16, 2004. Plaintiff did not file a notice of appeal from the grant of summary judgment.

Plaintiff filed her notice of motion for reconsideration on March 14, 2005, nearly four months after summary judgment had been granted. Her motion was heard on April 1, 2005, and an order denying reconsideration was entered on April 14, 2005. Plaintiff filed the instant notice of appeal on May 20, 2005, contending that her motion for reconsideration was improperly denied.

R. 4:49-2 provides that a motion for reconsideration must be served no later than twenty days after service of the judgment or order sought to be reconsidered. While other court deadlines may be enlarged by consent or order, an enlargement of the time for the filing of a motion for reconsideration is prohibited. R. 1:3-4(a), (c). It is undisputed that the trial court entered its order granting summary judgment on November 16, 2004, which plaintiff received that day. Plaintiff did not file her motion for reconsideration until March 14, 2005, far beyond the twenty day period provided by R. 4:49-2. Despite the prohibition on relaxation of the filing deadline, Judge Moses considered plaintiff's motion on the merits. Because she did so, we do so as well.

A motion for reconsideration must "state with specificity the basis on which it is made, including a statement of the matters or controlling decisions which [the movant] believes the court has overlooked or as to which it has erred." R. 4:49-2. As we observed in Cummings v. Bahr, 295 N.J. Super. 374 (App. Div. 1996):

Reconsideration should be utilized only for those cases which fall into that narrow corridor in which either 1) the court has expressed its decision based upon a palpably incorrect or irrational basis, or 2) it is obvious that the court either did not consider, or failed to appreciate the significance of probative, competent evidence.

[Id. at 384]

In support of her motion for reconsideration, plaintiff asserted that the forensic accounting report prepared by the parties' joint economic expert, William Morrison (the "Morrison" report), which Liebowitz used to negotiate the divorce settlement, was flawed. In particular, plaintiff contended that after summary judgment had been granted, she received documents from her own accountant, Lawrence Gotfried, C.P.A. ("Gotfried report"), which questioned some of the methodology used in the Morrison report. In rejecting plaintiff's claim that Liebowitz was negligent because he improperly relied on the Morrison report, Judge Moses found that plaintiff had failed to establish that any such negligence by Liebowitz in relying on the Morrison report was a proximate cause of any injury suffered by the plaintiff.

We agree with Judge Moses' conclusion concerning Liebowitz's reliance on the Morrison report. Judge Moses stated:

[A]fter having met with Mr. Gotfried, prior to the settlement agreement, Shulman voluntarily entered into such a settlement agreement. The new reports do nothing to negate that fact.

She is unable to show how these conflicting reports provide evidence of a breach of duty by defendant Liebowitz. She's unable to show that these new reports suggest that Liebowitz's conduct was the proximate cause of any injury she received and, most important, as I indicated in my original opinion, she has been unable to show that she would have received materially more but for Liebowitz's substandard performance.

We further agree with Judge Moses' conclusion that the Gotfried report does not indicate conclusively that Steigman's practice was undervalued. The Gotfried report merely expresses doubt about the methodology used in the Morrison report, but makes no conclusion because of the lack of information sufficient to conduct an independent evaluation. Thus, Judge Moses did not commit error in finding the Gotfried report was an insufficient basis upon which to grant a motion for reconsideration. Plaintiff also claimed in support of her motion for reconsideration that Liebowitz deviated from accepted standards of legal representation by failing to negotiate child support payments for Shaun. Judge Moses had concluded during the summary judgment motion that "enhanced alimony" of $5,000.00 per month was deliberately included in the divorce settlement in order to enable the plaintiff to pay all of her son's support and educational expenses. In denying plaintiff's motion for reconsideration on this issue, Judge Moses properly concluded that plaintiff failed to demonstrate that any matters were overlooked or any errors of law were made.

With respect to plaintiff's contention during the motion for reconsideration that she had not received sixty-five percent of the marital estate as defendants claimed, Judge Moses concluded that plaintiff had submitted nothing, either at the time of the summary judgment motion or at the time of the motion for reconsideration, to refute defendants' evidence concerning that issue. During oral argument, plaintiff drew our attention to her affidavit dated March 8, 2005 which challenges the conclusion that she received sixty-five percent of the marital estate. The affidavit of March 8, 2005 was prepared long after the motion for reconsideration was heard and denied, and therefore we will not consider it.

Accordingly, we find that Judge Moses carefully considered the various contentions raised by the plaintiff's motion for reconsideration. We agree with the judge's conclusion that the plaintiff failed to establish that the court overlooked any matters when it granted the motion for summary judgment. Our careful review of the record fails to persuade us that the court below erred in its findings of fact or conclusions of law at the time that plaintiff's motion for reconsideration was heard and denied.

Affirmed.

 

The trial court referred to the plaintiff Wildes' by her surname Shulman. We refer to her as Wildes.

Wildes received nearly $640,000.00 in the settlement. Wildes' expert in the malpractice action contended that she should have received fifty percent of the marital estate. Clearly, she received more than her own expert said she was entitled to receive.

(continued)

(continued)

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A-4905-04T2

November 2, 2006