Robbins v O’Hara 2025 NY Slip Op 32005(U) June 5, 2025 Supreme Court, New York County Docket Number: Index No. 152842/2022 Judge: David B. Cohen presents the attorney judgment defense in a setting where the Court finds that there is no unsettled or misunderstood law.
“In his complaint, plaintiff alleges that he retained defendants in 2018 to represent him in a
divorce proceeding against Madero1 (NYSCEF 1). In February 2020 plaintiff and Madero
signed a Stipulation of Settlement (Settlement Agreement), which, among other things, required
plaintiff to obtain life insurance naming Madero as the beneficiary to secure his payment
obligations under the agreement (id.). Following the onset of the COVID-19 pandemic and its
alleged impact on plaintiffs’ finances, plaintiff contends that defendants advised him that the pandemic provided grounds to “vitiate” the entire Stipulation, including the life insurance
requirement (id.).
In his affirmation, plaintiff claims this advice was contrary to well-established New York
precedent and was based on a “phantom” legal research project that was fabricated to generate
more than $40,000 in additional legal fees (NYSCEF 51). Relying on this erroneous advice,
plaintiff did not obtain the required life insurance (id.).
On August 6, 2020, Madero submitted an order to show cause seeking to compel plaintiff
to obtain the agreed-upon life insurance, and also requested attorneys’ fees (NYSCEF 39). In
response, on October 28, 2020, defendants filed a cross-motion on plaintiff’s behalf seeking
relief from certain financial obligations under the Settlement Agreement, including the life
insurance requirement, the distributive award, and spousal maintenance, and acknowledged
during oral argument that defendants were asking the Court to make new law (NYSCEF 20).
On March 30, 2021, the Court issued an order granting Madero’s application and denying plaintiff’s cross-motion (NYSCEF 22). The court also directed plaintiff to pay Madero’s counsel
fees in accordance with the Settlement Agreement (id.).”
““Pursuant to the professional judgment rule, an attorney’s ‘selection of one among several
reasonable courses of action does not constitute malpractice’ (Springs v L&D Law P.C., 234
AD3d 422, 424 [1st Dept 2025] quoting Rosner v. Paley, 65 NY2d 736 [1985]). However, an
attorney may be held liable for malpractice when they pursue an untenable legal strategy and fail
to advise the client of the adverse consequences, especially where those consequences were
foreseeable and avoidable (see Tenesaca Delgado v. Bretz & Coven, LLP, 106 AD3d 486, 488–
89 [1st Dept 2013] [legal malpractice claim sufficiently stated where attorneys advised plaintiff
to seek relief barred by law, failed to warn of likely deportation, and thereby caused her
removal]; see also Stevens v Wheeler, 216 AD3d 537, 538 [1st Dept 2023] [holding malpractice
claim sufficiently stated where attorneys’ probate advice exposed estate to greater elective share
under Rhode Island law]).
Here, defendants argue that plaintiff’s allegations are conclusory and fail to state a claim.
While the complaint uses terms like “negligent” and “reckless,” plaintiff alleges specific facts to
support these assertions, namely, that defendants advised him to repudiate a fully executed
negotiated Settlement Agreement, based on speculative legal grounds purportedly justified by the
COVID-19 pandemic. Plaintiff further alleges that this advice was unreasonable, contrary to
established law, and proximately caused him to incur damages, specifically his own unnecessary
legal fees and Madero’s attorneys’ fees pursuant to the Settlement Agreement’s fee-shifting provision.
Defendants also contend that plaintiff cannot establish causation because he did not and
could not prevail on the cross-motion seeking to set aside the Settlement Agreement. The
alleged malpractice is not that defendants failed to succeed on the cross-motion, but that they
advised plaintiff to pursue a meritless strategy that was contrary to controlling precedent and
predictably resulted in financial harm. “Causation” in the malpractice context does not always
require that a client would have prevailed on a meritless motion, but rather that the attorney’s
deficient advice proximately caused the client to incur avoidable damages (Boye v Rubin &
Bailin, LLP, 152 AD3d 1 [1st Dept 2017] [“plaintiff must show that he or she . . . would not have
incurred any damages, but for the lawyer’s negligence”(quoting Rudolf, 8 NY3d at 442)]).”
“Lastly, defendants’ argument that an attorney’s judgment call, particularly one involving
COVID-19 and its impact on settlement agreements, constitutes judgmental immunity is
misplaced. They rely on Lloyd’s Syndicate 2987 v Furman Kornfeld & Brennan, LLP, 182
A.D.3d 487 (1st Dept 2020), where the court applied judgmental immunity because the
attorney’s advice involved unsettled insurance law and was supported by two reasonable,
independent legal grounds. The plaintiff failed to allege that either was incorrect. Notably,
Lloyd’s was decided before the COVID-19 pandemic and did not involve pandemic-related legal
advice. Here, the alleged malpractice does not involve unsettled law or ambiguous contract
terms. It concerns specific advice to seek settlement modification based on speculative
assumptions about COVID-19. Judgmental immunity does not apply where the advice lacks a
reasonable basis.
At the motion to dismiss stage, pursuant to CPLR 3211(a)(7), these allegations
sufficiently state that defendants “failed to exercise the ordinary reasonable skill and knowledge
commonly possessed by a member of the legal profession and that their failure caused plaintiff to
suffer actual and ascertainable damages” (Nath v Chemtob Moss Forman & Beyda, LLP, 231 AD3d 546 [1st Dept 2024]). Accordingly, defendants’ motion to dismiss pursuant to CPLR 3211(a)(7) is denied.”