Legal Malpractice

How Can This Happen, followed by Legal Malpractice

By (Andrew Lavoott Bluestone)

In Macdonald v Guttman ;2010 NY Slip Op 03519 ;Decided on April 29, 2010 ;Appellate Division, Third Department  one gets a whif of some questionable behavior.  Plaintiff is the wife in a divorce action.  A footnote to the dcision tells us of the Husbands situation: "  Footnote 1:According to the complaint, Lucenti suffered from mental illness that occasionally required hospitalization, and he was alleged to have been institutionalized at a mental health facility at the time that plaintiff commenced the divorce action. Seven months later, Lucenti executed the stipulation pro se. "
 

The divorce was completed and each side agreed that their securities were to be jointly held, and all dividents reinvested.  Soon after, it became apparent that the wife was not re-investing dividends, and the case devolved into a referee's search for assets.  It turns out that the wife eventually got "$89,323 in dividends from the jointly held securities and plaintiff received $5,176. "
 

So, "When plaintiff and Lucenti could not reach an agreement regarding the distribution of the securities, and after hearing arguments of counsel, Supreme Court (Relihan Jr., J.), in a November 2003 order, determined that all the securities listed in the referee's report were marital property, and redistributed them almost evenly between plaintiff and Lucenti based on their value at the time of the 1996 stipulation. A notice of appeal was filed by plaintiff, but defendant failed to timely perfect the appeal. In December 2005, this Court denied defendant's motion seeking an [*3]extension of time to perfect the appeal. Plaintiff then commenced this legal malpractice action against defendant and his law firm, claiming that, but for defendant's failure to perfect the appeal, she would have been successful on the appeal on the ground that, in its November 2003 order, Supreme Court improperly set aside the provisions of the stipulation in redistributing the parties' securities. Supreme Court (Garry, J.) granted defendants' motion to dismiss the complaint for failure to state a cause of action. Plaintiff appeals, and we now affirm. "

Full post as published by New York Attorney Malpractice Blog on May 03, 2010 (boomark / email).