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
-2- 1143 

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 crossmoved 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
-3- 1143 

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