State of New York

Supreme Court, Appellate Division

Third Judicial Department

Decided and Entered: December 8, 2016 521985 

520250

________________________________

GWEN ELIZABETH BULLOCK,

Appellant,

v

R. JAMES MILLER,

Respondent.

(Action No. 1.) MEMORANDUM AND ORDER

 

GWEN E. BULLOCK,

Appellant,

v

R. JAMES MILLER et al.,

Respondents.

(Action No. 2.)

________________________________

Calendar Date: October 18, 2016

Before: Peters, P.J., Garry, Devine, Clark and Aarons, JJ.

__________

Gwen E. Bullock, Ithaca, appellant pro se.

Smith Sovik Kendrick & Sugnet PC, Syracuse (Victor L. Prial

of counsel), for respondents.

__________

Devine, J.

Appeals (1) from an order of the Supreme Court (Mulvey,

J.), entered July 30, 2014 in Tompkins County, which, in action
-2- 521985

520250 

No. 2, among other things, granted defendants' motion for summary

judgment dismissing the complaint, and (2) from an order of said

court, entered October 19, 2015 in Tompkins County, which, in

action No. 1, granted defendant's motion to turn over an

undertaking posted by plaintiff.

Plaintiff retained defendant Miller Mayer, LLP to represent

her in a divorce action, with the legal work performed by

defendant R. James Miller. Miller commenced an action for

divorce on plaintiff's behalf by filing a summons with notice in

January 2009, but did not serve it, instead electing to prosecute

a second action commenced in July 2009. Plaintiff and her

husband appeared for trial on September 3, 2010, and counsel

placed a stipulation on the record that resolved all outstanding

issues. They stipulated as to the division of expenses relating

to two children under the age of 21 and also agreed, in

conclusory fashion, to waive any other child support obligation. 

Miller agreed to, but did not, submit a proposed judgment of

divorce for signature by December 1, 2010. Supreme Court

received and executed a judgment of divorce later that month, and

executed an amended judgment of divorce in February 2011. 

Plaintiff retained new counsel and made an unsuccessful

motion in the divorce action to, among other things, reopen the

issue of child support by vacating the relevant provisions of the

stipulation. She then commenced action No. 2 and alleged that

defendants had committed legal malpractice in their

representation of her. Following joinder of issue and discovery,

defendants moved, and plaintiff cross-moved, for summary

judgment. Plaintiff appeals from the July 2014 order granting

defendants' motion and dismissing the complaint in action No. 2.1

1 Plaintiff has also commenced an action against Miller in

March 2011 (action No. 1) in which Supreme Court granted a motion

by Miller to turn over monies to the firm that plaintiff had

previously posted as an undertaking. Although plaintiff also

filed an appeal from this order, she raises no issues in her

brief with respect thereto and therefore they are deemed

abandoned (see Miazga v Assaf, 136 AD3d 1131, 1132 n 1 [2016], lv
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Initially, while plaintiff's brief is replete with

arguments founded upon information outside the record, "our

review [must] be limited to facts contained in the record and any

arguments based thereon" (Gagen v Kipany Prods., 289 AD2d 844,

845 [2001]; see Matter of County of Albany [Bowles], 91 AD3d

1132, 1133 [2012]). We will not, as a result, consider those

arguments.

Turning to the record that is before us, we affirm. In

order to succeed on a claim for legal malpractice, a plaintiff

must show "that the attorney failed to exercise the ordinary

reasonable skill and knowledge commonly possessed by a member of

the legal profession and that the attorney's breach of this duty

proximately caused the plaintiff to sustain actual and

ascertainable damages" (Arnold v Devane, 123 AD3d 1202, 1203-1204

[2014] [internal quotation marks, brackets and citations

omitted]; see Dombrowski v Bulson, 19 NY3d 347, 350 [2012]). 

Defendants, as the proponents of a motion for summary judgment,

bear the initial burden of "present[ing] evidence in admissible

form establishing that plaintiff is unable to prove at least one

of these elements" (Ehlinger v Ruberti, Girvin & Ferlazzo, 304

AD2d 925, 926 [2003]; accord Miazga v Assaf, 136 AD3d 1131, 1133-

1134 [2016], lv dismissed 27 NY3d 1078 [2016]). Contrary to

defendants' contention, the "conclusory, self-serving statements"

of Miller regarding the applicable standard of care did not

constitute "expert . . . evidence which would tend to establish

. . . that [defendants] did not" depart from it (Estate of

Nevelson v Carro, Spanbock, Kaster & Cuiffo, 259 AD2d 282, 284

[1999]; see 400 E. 77th Owners, Inc. v New York Eng'g Assn.,

P.C., 122 AD3d 474, 475 [2014]; cf. Ehlinger v Ruberti, Girvin &

Ferlazzo, 304 AD2d at 926). As a result, the issue "distills to

whether defendant[s] met [their] threshold burden as to the

element of either proximate cause or damages" (Arnold v Devane,

123 AD3d at 1204; see Schrowang v Biscone, 128 AD3d 1162, 1164

[2015]; Carey v Campbell, 93 AD2d 923, 923-924 [1983]).

dismissed 27 NY3d 1078 [2016]; Salzer v Benderson Dev. Co., LLC,

130 AD3d 1226, 1227 n 1 [2015]).
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Defendants met that initial burden by submitting competent

proof – including the affidavit of Miller, his and plaintiff's

deposition testimony and documentary evidence – that any breach

of duty on defendants' part did not result in damages to

plaintiff. Plaintiff and her husband both claimed to be the

custodial parent of their children, and she asserted that Miller

committed malpractice by failing to pursue an award of child

support on her behalf. Miller explained that he did not do so

because plaintiff would not have been found to be the custodial

parent, a belief justified by the refusal of Supreme Court to

order either party to pay temporary child support and an

investigation that led Miller to believe that the children either

lived on their own or spent the bulk of their time with the

father. Miller therefore declined to do anything that could

backfire and end in plaintiff paying child support, and instead

negotiated a settlement in which neither party would pay child

support. In response to this proof, plaintiff continued to

assert that she was the custodial parent. She provided nothing

to show that an application for child support would have

succeeded, however, and did not raise a question of fact as to

whether she was damaged by the failure to make one (see Miazga v

Assaf, 136 AD3d at 1134; Sevey v Friedlander, 83 AD3d 1226, 1227

[2011], lv denied 17 NY3d 707 [2011]). 

Plaintiff's additional challenges to the actions of

defendants do not demand extended discussion. She complained

that defendants committed malpractice in not prosecuting the

first divorce action commenced. That being said, defendants

provided proof that she was benefitted by that delay, as

settlement negotiations were underway prior to the commencement

of the second divorce action and plaintiff received far more in

voluntary spousal support during that period than she was

entitled to (and subsequently received) in court-ordered

maintenance. Lastly, while Miller admittedly failed to include

necessary language in the stipulation regarding the presumptively

correct basic child support obligation and the reasons for

deviation from that amount (see Domestic Relations Law § 240 

[1-b] [h]), as noted above, there is little to show that

plaintiff was damaged by the failure to pursue the issue of child
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support more vigorously.2 Her remaining contentions, to the

extent that they are properly before us, have been considered and

rejected.

Peters, P.J., Garry, Clark and Aarons, JJ., concur.

ORDERED that the orders are affirmed, without costs.

ENTER:

Robert D. Mayberger

Clerk of the Court

2 Plaintiff pursued the appropriate course of addressing

the deficiencies in the stipulation by moving to vacate the child

support provisions of the divorce judgment. Supreme Court denied

her motion, concluding that she had not made "even a minimal

showing that she was the custodial parent" and that any error was

"entirely in [her] favor," and plaintiff did not appeal

therefrom.