Coccia v. Liotti

• Decision Date: 05 December 2012
• Citation: 101 A.D.3d 664,2012 N.Y. Slip Op. 08273,956 N.Y.S.2d 63
• Parties: Joan COCCIA, respondent, v. Thomas F. LIOTTI, appellant.
• Court: New York Supreme Court — Appellate Division

101 A.D.3d 664

956 N.Y.S.2d 63

2012 N.Y. Slip Op. 08273

Joan COCCIA, respondent,

v.Thomas F. LIOTTI, appellant.

Supreme Court, Appellate Division, Second Department, New York.

Dec. 5, 2012.

Thomas F. Liotti, Garden City, N.Y., appellant pro se.

Jeffrey Levitt, Massapequa, N.Y., for respondent.

MARK C. DILLON, J.P., DANIEL D. ANGIOLILLO, RUTH C. BALKIN, and CHERYL E. CHAMBERS, JJ.

In an action, inter alia, to recover damages for legal malpractice, the defendant appeals, as limited by his brief, from so much of an order of the Supreme Court, Nassau County (Lally, J.), entered June 3, 2011, as denied that branch of his motion which was for summary judgment dismissing the complaint. Justice Angiolillo has been substituted for former Justice Belen ( see22 NYCRR 670.1[c] ).

ORDERED that the order is modified, on the law, by deleting the provision thereof denying that branch of the defendant's motion which was for summary judgment dismissing so much of the first cause of action as sought to recover damages for legal malpractice based upon his alleged negligence in advising the plaintiff to settle her matrimonial action, and substituting therefor a provision granting that branch of the motion; as so modified, the order is affirmed insofar as appealed from, without costs or disbursements.

The defendant, an attorney, represented the plaintiff in a matrimonial action that was resolved by stipulation of settlement pursuant to which the plaintiff received, inter alia, $1.6 million in equitable distribution and an additional amount of annual maintenance. Thereafter, the plaintiff commenced this action alleging, among other things, legal malpractice. Specifically, the plaintiff alleged that the defendant negligently advised her to settle the underlying matrimonial action despite the suggestion of a forensic accountant that the plaintiff's husband earned, or had the ability to earn, more money than he had disclosed. In an order entered September 13, 2007, the Supreme Court denied the defendant's cross motion for summary judgment. Subsequently, in an order entered May 5, 2008, upon renewal, the Supreme Court, among other things, granted that branch of the defendant's cross motion which was for summary judgment dismissing so much of the first cause of action as sought to recover damages for legal malpractice based upon the defendant's alleged negligent advice to settle. This Court modified the order entered May 5, 2008, inter alia, upon renewal, by adhering to so much of the original determination in the order entered September 13, 2007, as denied that branch of the cross motion ( see Coccia v. Liotti, 70 A.D.3d 747, 896 N.Y.S.2d 90). Thereafter, depositions of the plaintiff's former husband and his accountant were conducted. The defendant again moved, inter alia, for summary judgment dismissing the complaint. In support, he annexed the deposition transcripts of the former husband and his accountant which, the defendant maintained, clarified any discrepancies between the former husband's claimed income and his business records, and which further demonstrated that the financial basis for the underlying matrimonial settlement was sound. The defendant also made arguments in support of those branches of his motion which were for summary judgment dismissing the other causes of action that were duplicative of arguments he made in his...