ROEDELBRONN v. BORSTEIN SHEINBAUM LLC (2023)

Order, Supreme Court, New York County (William Perry, J.), entered May 5, 2022, which, to the extent appealed from as limited by the briefs, granted defendants’ motion to dismiss the amended complaint for legal malpractice, unanimously affirmed, without costs.

Plaintiff's contention that the continuous representation doctrine tolled the statute of limitations has merit given that the attorneys who represented plaintiff in the divorce proceeding when the alleged malpractice occurred, continued to represent plaintiff in the same proceeding, “albeit while at different law firms” (Boesky v. Levine, 193 A.D.3d 403, 405, 147 N.Y.S.3d 2 [1st Dept. 2021]).  Nevertheless, plaintiff's argument with respect to her malpractice claim is unavailing.

On appeal, plaintiff limits her claim to the value and percentage award of the Agrifos business assets based upon the alleged malpractice of Borstein & Sheinbaum at the 2015 hearing, i.e., that the Special Referee and Supreme Court ignored the justifications for the 40% award in two other assets by awarding her only 10% of the value of Agrifos, her former husband's fertilizer business.  However, this Court previously affirmed the 10% award of the Agrifos assets, applying the well-settled rule that marital assets do not have to be divided equally (Cotton v. Roedelbronn, 170 A.D.3d 595, 595–596, 97 N.Y.S.3d 28 [1st Dept. 2019], citing Arvantides v. Arvantides, 64 N.Y.2d 1033, 1034, 489 N.Y.S.2d 58, 478 N.E.2d 199 [1985]).  Plaintiff's attempt to relitigate this issue is unavailing and the conclusory allegations do not adequately state a claim for malpractice (see Garr Silpe, P.C. v. Gorman, 192 A.D.3d 633, 141 N.Y.S.3d 310 [1st Dept. 2021];  Olsen v. Smith, 187 A.D.3d 675, 675, 131 N.Y.S.3d 554 [1st Dept. 2020];  Sitomer v. Goldweber Epstein, LLP, 139 A.D.3d 642, 643, 34 N.Y.S.3d 8 [1st Dept. 2016], lv denied 28 N.Y.3d 906, 2016 WL 6273493 [2016]).