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Behrins & Behrins, P.C. v Chan (2004 NY Slip Op 24347)

Supreme Court, Richmond County, September 1, 2004
APPEARANCES OF COUNSEL
Behrins & Behrins, P.C., Staten Island, pro se, Nerlino, Gambale & Klapper, Staten Island, and Barone & Scano, Staten Island, for Behrins & Behrins, P.C. Schoeman Updike & Kaufman, New York City, for Pamela Chan.
OPINION OF THE COURT
Thomas P. Aliotta, J.
Plaintiff moves for an order pursuant to CPLR 4102 directing that the jury demand filed by Pamela Chan as defendant in action No. 1 and plaintiff in action No. 2 be stricken. Defendant in action No. 1 and plaintiff in action No. 2 opposes said motion.
These actions were consolidated for the purposes of a joint trial by order of the Honorable Alice Schlesinger on August 13, 2002. The Judge directed that both actions be heard for all purposes in Richmond County. Defendant Chan filed a jury demand in action No. 1 on July 11, 2003 and on June 30, 2003 in action No. 2. Plaintiff in action No. 1 argues that Chan is not entitled to a trial by jury because she effectively waived her right to a jury and that the interposition of a jury would be contrary to statute and case law.
file:///C|/Users/Peter/Desktop/NY/2/2004_24347.htm[4/21/2013 1:32:46 PM] Behrins & Behrins, P.C. v Chan (2004 NY Slip Op 24347)
Action No. 1 is an action seeking payment of an outstanding attorney's fee in the matter of Solomon v Solomon. Action No. 2 is a legal malpractice claim brought against Behrins & Behrins, P.C., based upon their representation of Ms. Chan in her divorce proceeding, the case of Solomon v Solomon. She claims that the Behrins firm failed to have child support properly computed, failed to establish Chan's alleged right to enhanced earning capacity afforded her husband, Michael Solomon, as a result of his completing an additional 32 credits toward an MBA, failed to safeguard certain property allegedly owned by Chan and converted certain sums of money that were held by Behrins in escrow which were applied to Behrins' legal fee. Plaintiff claims that the equitable nature of these issues prevents their determination by a jury. Further, Behrins & Behrins, P.C. argues that Chan has waived her right to a jury on any other issues by bringing an equitable counterclaim in this matter.
By her opposition, Ms. Chan argues that she served her jury demand in action No. 1 on July 11, 2003 and in action No. 2 on June 30, 2003. There is no dispute that these demands were served timely. Because both action No. 1, an alleged breach of contract, and action No. 2, a legal malpractice claim, are proper subjects for a jury's determination, Chan claims that her jury demands are allowable and that plaintiff's motion must be denied.
There is no dispute that action No. 1 is a matter eligible to be decided by a jury. Action No. 2, a legal malpractice claim, is ordinarily an appropriate subject for jury verdict also. However, considerations arise herein where the underlying disputed case outcome concerns equitable distribution in a matrimonial action.
Legal malpractice actions have been described as a "lawsuit within a lawsuit" because it is incumbent upon the jury to first determine the hypothetical outcome of the underlying matter before turning to the question of whether the attorney committed malpractice (see, Cramer v Englert, 289 AD2d 617, 617 [2001]; see also, McKenna v Forsyth & Forsyth, 280 AD2d 79 [2001]). Although there [*2]is a right to a jury trial with respect to the issue of divorce, equitable powers of the court determine all other matters incidental to the matrimonial proceeding, including equitable distribution and related disputes involving the division of marital property pursuant to Domestic Relations Law

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