Lunney & Crocco v. Wolfe

243 A.D.2d 348, 663 N.Y.S.2d 164, 1997 N.Y. App. Div. LEXIS 10251

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 21, 1997
• Status: Published

Opinion

Order and judgment (one paper), Supreme Court, New York County (Kristin Booth Glen, J.), entered October 16, 1996, which, in a proceeding to enforce an attorney’s charging lien, confirmed the report of the Special Referee except for the recommendation of no legal malpractice, held that issue in abeyance pending further order of the court, and awarded petitioner $25,845.40 as its legal fee, inclusive of interest, and order (denominated judgment), same court (David Saxe, J.), entered October 17, 1996, which dismissed respondent’s defense of legal malpractice, unanimously affirmed, with one bill of costs.

Respondent’s defense of legal malpractice was properly dismissed for failure to adduce any evidence to support his allegations that petitioner was negligent in its evaluation of the marital assets, or even that but for the alleged negligence respondent would have achieved a better result than that obtained in the settlement (see, Bernstein v Oppenheim & Co., 160 AD2d 428, 430; Wexler v Shea & Gould, 211 AD2d 450). Respondent’s claims that petitioner failed to detect unauthorized changes to the settlement agreement and that neither he nor petitioner read the final draft of the agreement before its execution are foreclosed by the agreement which states, inter alia, that respondent had been apprised of his legal rights and had ascertained and weighed all the facts likely to influence his judgment, and that all provisions of the agreement were fully and satisfactorily explained to him (see, Wexler v Shea & Gould, supra). Concur—Sullivan, J. P., Milonas, Rosenberger, Ellerin and Wallach, JJ.