The case before the court is an action for malpractice. This case is being heard by the Supreme Court of the State of New York located in Nassau County. The plaintiff in the case retained the defendant attorney to represent her during her divorce proceeding against her now ex-husband. The matrimonial action was settled towards the end of 2003 with the judgment of divorce being entered on the 27th of February, 2004. The defendant states that the judgment of divorce ended the matrimonial action and her representation of the plaintiff in the matrimonial action.
In October of 2006, the plaintiff’s ex-husband passed away. In April of 2007, the plaintiff was named as a defendant in an insurance action that took place in the New York County Supreme Court. The insurance action was started by the executor of her ex-husband’s estate. The insurance company was named as a co-defendant in the case. The defendant of this case asserts that all causes of action in the insurance action were in regard to the changes of beneficiary designation on the life insurance policy made by the plaintiff’s ex-husband.
In May of 2007, the plaintiff obtained the defendant attorney to represent her in the insurance action under a new retainer agreement. The insurance action was to determine who would be the beneficiary of the life insurance policy. The action was eventually settled with the insurance proceeds being divided between the parties. The plaintiff was to receive $290,360.25.
The defendant states that after the settlement in the insurance action there was an issue regarding the outstanding legal fees owed by the plaintiff. The defendant brought suit for payment of the legal fees and then the plaintiff began this legal malpractice suit.
The plaintiff’s complaint alleges that the defendant committed legal malpractice in the previous matrimonial action. The defendant argues that the malpractice action is barred by the three year statute of limitations, which started to run after the divorce settlement on the 27th of February, 2004. The complaint in this matter was not filed until January of 2011, which is past the expiration of the statute of limitations.
The defendant further argues that the plaintiff has failed to properly plead a cause of action for legal malpractice.
The plaintiff opposes the motion to dismiss stating that the defendant failed to properly draft the divorce agreement, failed to properly advice the plaintiff in regard to the legal consequences of certain provisions of the divorce agreement, and that the insurance action was a result of legal malpractice of the defendant. The plaintiff argues that she should have been the sole beneficiary of the life insurance policy to cover the remaining spousal support payments.
Court Discussion and Decision
When reviewing the facts of the case the court finds that the issue at hand is time barred by the statute of limitations. The issue was not raised until well after the three year time period had passed. In addition, the plaintiff has failed to state a cause of action in regard to the legal malpractice action. For this reason, the court finds in favor of the defendant and the complaint is dismissed.
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