        SUPREME COURT OF THE STATE OF NEW YORK
           Appellate Division, Fourth Judicial Department

1143
CA 15-00737
PRESENT: PERADOTTO, J.P., CARNI, WHALEN, AND DEJOSEPH, JJ.


CHAMBERLAIN, D’AMANDA, OPPENHEIMER &
GREENFIELD, LLP, PLAINTIFF-APPELLANT-RESPONDENT,

                    V                                MEMORANDUM AND ORDER

REBECCA P. WILSON, DEFENDANT-RESPONDENT-APPELLANT.


BARCLAY DAMON, LLP, ROCHESTER (TARA J. SCIORTINO OF COUNSEL), FOR
PLAINTIFF-APPELLANT-RESPONDENT.

M W MOODY LLC, NEW YORK CITY (MARK W. MOODY OF COUNSEL), AND GALLAGHER
LAW OFFICES PLLC, PELHAM, FOR DEFENDANT-RESPONDENT-APPELLANT.


     Appeal and cross appeal from an amended order of the Supreme
Court, Monroe County (John J. Ark, J.), entered August 5, 2014. The
amended order denied the motion of defendant for summary judgment
dismissing the complaint and for partial summary judgment on her
counterclaim, and denied the cross motions of plaintiff for summary
judgment on the complaint and for summary judgment dismissing the
counterclaim.

     It is hereby ORDERED that the amended order so appealed from is
unanimously modified on the law by granting the cross motion for
summary judgment dismissing the counterclaim, and dismissing the
counterclaim, and as modified the amended order is affirmed without
costs.

     Memorandum: Plaintiff commenced this action to recover unpaid
legal fees, and defendant interposed a counterclaim for legal
malpractice alleging, inter alia, that plaintiff was negligent in
representing her in the negotiation and settlement of her underlying
matrimonial action. Defendant and her former husband settled the
matrimonial action by a written separation agreement filed July 21,
2009, they were divorced by a judgment entered November 30, 2009, and
the separation agreement was incorporated into the judgment of
divorce. The findings of fact and conclusions of law underlying the
judgment of divorce recited that the separation agreement was “fair
and reasonable when made and is not unconscionable.” The separation
agreement deferred resolution of any personal property issues, but
afforded defendant and her former husband the opportunity to settle
the issues on their own in “good faith.” They were unable to resolve
the personal property issues on their own and therefore made an
application to Supreme Court to determine the issues. In addition to
resolving the personal property issues, the court denied defendant’s
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                                                         CA 15-00737

request for counsel fees, expert fees, and moving and storage costs.
We affirmed that order on appeal (Wilson v Wilson, 128 AD3d 1326).

     Following the completion of discovery, defendant moved for
summary judgment dismissing the complaint, as well as for summary
judgment on that part of her counterclaim asserting that plaintiff is
liable to her for failing to have her former husband pay all of her
counsel fees in the underlying matrimonial action. Plaintiff cross-
moved for summary judgment dismissing defendant’s legal malpractice
counterclaim in its entirety. The court, inter alia, denied the
motion and the cross motion. We conclude that the court erred in
denying plaintiff’s cross motion for summary judgment dismissing the
counterclaim, and we therefore modify the amended order accordingly.

     Defendant contends, inter alia, that but for plaintiff’s alleged
negligence she would have received a more favorable result had she
proceeded to trial. Generally, “to recover damages for legal
malpractice, a [client] must prove (1) that the [law firm] failed to
exercise that degree of care, skill, and diligence commonly possessed
by a member of the legal community, (2) proximate cause, (3) damages,
and (4) that the [client] would have been successful in the underlying
action had the [law firm] exercised due care” (Iannarone v Gramer, 256
AD2d 443, 444; see Blank v Harry Katz, P.C., 3 AD3d 512, 513). In a
legal malpractice action in which there was no settlement of the
underlying action, it is well settled that, “[t]o obtain summary
judgment dismissing [the] complaint . . . , a [law firm] must
demonstrate that the [client] is unable to prove at least one of the
essential elements of its legal malpractice cause of action” (Boglia v
Greenberg, 63 AD3d 973, 974; Ehlinger v Ruberti, Girvin & Ferlazzo,
304 AD2d 925, 926). A settlement of the underlying action does not,
per se, preclude a legal malpractice action (see Schiff v Sallah Law
Firm, P.C., 128 AD3d 668, 669). Where, as here, however, the
underlying action has been settled, the focus becomes whether
“settlement of the action was effectively compelled by the mistakes of
counsel” (Bernstein v Oppenheim & Co., 160 AD2d 428, 430; see Tortura
v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083,
lv denied 6 NY3d 701). Where the law firm meets its burden under this
test, the client must then provide proof raising triable issues of
fact whether the settlement was compelled by mistakes of counsel, and
“[m]ere speculation about a loss resulting from an attorney’s
[alleged] poor performance is insufficient” (Antokol & Coffin v Myers,
30 AD3d 843, 845). Conclusory allegations that merely reflect a
subsequent dissatisfaction with the settlement, or that the client
would be in a better position but for the settlement, without more, do
not make out a claim of legal malpractice (see Boone v Bender, 74 AD3d
1111, 1113, lv denied 16 NY3d 710).

     Here, we conclude that plaintiff met its burden by establishing
that it did not fail to exercise the ordinary reasonable skill and
knowledge commonly possessed by a member of the legal profession, and
that the separation agreement was not the product of any mistakes of
counsel (see Schiff, 128 AD3d at 669; Boone, 74 AD3d at 1113; cf.
Steven L. Levitt & Assoc., P.C. v Balkin, 54 AD3d 403, 406). The
separation agreement recited, inter alia, that defendant understood
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                                                         CA 15-00737

the terms and conditions of the agreement, freely and voluntarily
accepted such terms, and believed it to be fair, adequate, and
reasonable. Plaintiff further established that the separation
agreement was in many respects financially favorable to defendant.
Thus, we conclude that plaintiff thereby shifted the burden to
defendant to raise a triable issue of fact (see Schiff, 128 AD3d at
669-670).

     We conclude that, on this record, defendant’s contentions that
after a trial the court would have, inter alia: required her former
husband to pay all of her counsel fees; awarded her a share of the
alleged increased value of her former husband’s business; and awarded
her lifetime maintenance, are speculative and conclusory (see Sevey v
Friedlander, 83 AD3d 1226, 1227, lv denied 17 NY3d 707; Boone, 74 AD3d
at 1113), and are insufficient to raise a triable issue of fact.

     In light of our determination, we do not address the remaining
contentions of the parties.




Entered:   February 5, 2016                     Frances E. Cafarell
                                                Clerk of the Court
