Bullock v. Miller , 43 N.Y.S.3d 201 ( 2016 )

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
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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.