In this legal malpractice action, defendant moves for summary judgment to dismiss the complaint, and plaintiff cross-moves for summary judgment on the complaint. For the following reasons, defendant's motion is granted in part and denied in part, and plaintiff's cross-motion is denied.

Plaintiff Josephine Cruciata (Cruciata) commenced this legal malpractice action against her former divorce attorney, defendant Joseph Mainiero (Mainiero). The court has discussed the facts of this case in several prior decisions, and need not revisit them at length here; however, it is relevant to note that, in her divorce action, Cruciata's new attorneys successfully moved the Appellate Division, Second Department, to vacate the stipulation of settlement thereof that Mainiero had negotiated. In its August 2, 2004 decision, the Second Department specifically found that [*2]

Here, the allegations ... if proven, were sufficient to create an inference of duress and intimidation exercised by the respondent and the former Law Guardian as to the issue of custody. Furthermore, a reasonable inference exists that the respondent may not have fully disclosed his financial assets, and that his pension and other assets were overlooked in arriving at the stipulation and, as a result, the terms of the agreement were so inequitable as to be manifestly unfair to the appellant. Under these circumstances, the Supreme Court should have denied the cross motion to dismiss the complaint ... and exercised its equitable powers and directed further financial disclosure followed by a hearing "to test the validity of the [stipulation of settlement]."

Despite the detailed on-the-record settlement of plaintiff's matrimonial action, the Second Department subsequently found that plaintiff's allegations seeking to rescind such stipulation were sufficient to create an inference of duress and intimidation exercised by her former husband and the Law Guardian as to the issue of custody and an inference that the former husband may not have fully disclosed his financial assets, that the former husband's pension and other assets were overlooked in arriving at the stipulation and that, as a result of those circumstances, the terms of the agreement were so inequitable as to be manifestly unfair to plaintiff. Given the foregoing, as well as the subsequent reopening of the matrimonial action for a de novo determination of all issues except for the actual divorce, the allegations in the amended verified complaint sufficiently state causes of action for legal malpractice and related relief against plaintiff's attorney in the matrimonial action [internal citations omitted].

Mainiero states that, after the aforementioned de novo review was completed, the only change made to Cruciata's divorce stipulation was to raise the amount of equitable distribution funds that she was to receive from her ex-husband to a total of $420,000.00 from the $220,000.00 that she was awarded pursuant to the original (vacated) stipulation of settlement. Mainiero [*3]further notes that the parties opted not to disturb the award of custody of the couple's children to Cruciata's ex-husband, and that the trial court specifically found that Cruciata's ex-husband had not hidden any financial assets from Cruciata. Mainiero alleges that the increase in the equitable distribution award was intended solely to compensate Cruciata for the amounts that she had expended in legal fees during the course of the de novo review.

Cruciata contests this allegation, and asserts that she and her ex-husband treated the issues of equitable distribution and of compensating her for legal expenditures separately. Cruciata also asserts that Mainiero did not serve her with a statutorily compliant retainer agreement when she hired him. That document recites as follows:

You have retained this firm and this firm has agreed to represent you in connection with performing the following services: ... to represent you in a matrimonial action in Supreme Court, Richmond County, entitled Cruciata v Cruciata. ...

For our services ... you have agreed to pay the firm a retainer fee of [$7,500.00] payable upon execution of this agreement.

You are advised that this is a minimum fee retainer.

This is not a flat fee arrangement. The work of this firm will be billed on an hourly basis ... . All hours shall be billed ... at the following hourly rates: [$190.00/hr]

This agreement does not apply to an appeal from a judgment ... .

This retainer fee does not apply to disbursements incurred by this firm on your behalf.

Cruciata's amended complaint, filed on October 12, 2004, sets forth causes of action for: 1) legal malpractice; 2) excessive legal fees; and 3) improper retainer agreement. Mainiero filed an answer denying the allegations in the complaint.

The court finds that Mainiero's motion for summary judgment should be granted in part and denied in part, and that Cruciata's cross-motion should be denied in its entirety.

As previously mentioned, Cruciata's first cause of action alleges legal malpractice.

In order to sustain a claim for legal malpractice, a plaintiff must establish both that the defendant attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession which results in actual damages to a plaintiff ... and that the plaintiff would have succeeded on the merits of the underlying action but [*4]for' the attorney's negligence [internal citations omitted].

In his motion, Mainiero argues that Cruciata cannot establish that, "but for" his purported malpractice, "she would have obtained a better result."^[FN1] Mainiero specifically argues first, that Cruciata cannot establish that his actions cost her the right to have a trial, since Cruciata herself chose to settle her divorce action rather than go to trial on both occasions when she was offered a choice. Mainiero also argues that Cruciata cannot establish that his actions adversely affected her right to custody of her children, because she chose not to litigate that issue after the Appellate Division, Second Department, vacated the original stipulation of settlement in her divorce action. Mainiero also argues that Cruciata cannot establish that his actions adversely affected her right to an equitable distribution of her marital property, since it was established that her ex-husband had not hidden any assets, and that the increase in her equitable distribution award was intended solely to compensate her for the large amount of legal fees she had spent in seeking those non-existent assets.

In her cross motion, Cruciata concedes both that she did have the right to a trial in her divorce action, but chose to forego it, and that she also chose not to litigate the issue of custody. However, Cruciata disputes Mainiero's contentions regarding equitable distribution, and specifically argues that, during the second settlement of her divorce action, she and her ex-husband treated the issues of equitable distribution and of compensating her for legal expenditures separately. Cruciata also claims that Mainiero, and not her ex-husband, is the party who should reimburse her for the legal fees that she incurred in re-opening and re-settling her divorce action. Mainiero's reply papers restate his original arguments, but do not address [*5]Cruciata's contention that he is the party liable to her for legal fees in her divorce action.

The court finds that, under the facts of this case, Mainiero is correct that Cruciata may not base a legal malpractice claim against her on the grounds that his actions adversely affected her rights to a trial and/or custody of her children in her divorce action. Cruciata has expressly admitted that she herself decided to settle that action and not to seek custody of her children. There is no conclusive evidence regarding the issue of equitable distribution, however. The only certain fact is that Cruciata was awarded a payment of $220,000.00 pursuant to her first divorce settlement, and a larger payment of $420,000.00 in the second settlement. The court's function, on a motion for summary judgment, is one of issue identification, not issue determination. See e.g. Sillman v Twentieth Century-Fox Film Corp., 3 NY2d 395 (1957); Grullon v City of New York, 297 AD2d 261 (1st Dept 2002). Here, the court finds that Cruciata's and Mainiero's competing explanations for the increase in the settlement present an unresolved issue of fact. Therefore the court is unable to award summary judgment either granting or dismissing Cruciata's legal malpractice claim to the extent it is based upon the amount of the settlement. Accordingly, the court finds that both parties' motions should be denied with respect to this claim.

Cruciata's second cause of action alleges excessive legal fees. Mainiero's original moving papers do not mention this cause of action other than to deny that the fees that he charged Cruciata were excessive. In her cross motion, Cruciata states that her "excessive legal fees" claim is presented as "an alternate theory of recovery" of the damages that she seeks pursuant to her third cause of action. Cruciata specifically argues that, because an attorney who is terminated for cause by a client has no right to collect legal fees, any fees that Mainiero charged her are, perforce excessive. In his reply/opposition papers, Mainiero argues that Cruciata has failed to present evidence of either: 1) the actual amount of legal fees that he charged; 2) that those fees were excessive; or 3) that he was discharged for cause. The court agrees. Cruciata simply presents no evidence to support her second cause of action beyond her own conclusory, self-serving statements that Mainiero's fees were excessive, and that she discharged him for cause. It is well settled that conclusory assertions which are unsupported by evidence are insufficient to oppose a motion for summary judgment. See e.g. Mason v Dupont Direct Fin. Holdings, 302 AD2d 260 (1st Dept 2003). Accordingly, the court finds that Maniero's motion should be granted, and Cruciata's cross motion should be denied, with respect to Cruciata's "excessive legal fees" claim. [*6]

Cruciata's third cause of action alleges that Mainiero served her with a statutorily non-compliant retainer agreement and, therefore, is not entitled to the legal fees that he collected from her while representing her in her divorce action. Mainiero first argues that Cruciata has failed to present any evidence of how this act resulted in her suffering any damages. Cruciata responds that, pursuant to governing case law, simple non-compliance is sufficient to preclude an attorney from recovering any fees. In this, Cruciata is correct. See e.g. Morrison Cohen Singer & Weinstein, LLP v Brophy, 19 AD3d 161 (1st Dept 2005); Mulcahy v Mulcahy, 285 AD2d 587 (2d Dept 2001). Nonetheless, Mainiero replies that the retainer agreement that he furnished to Cruciata was compliant with the statute. After reviewing that document, the court agrees.

22 NYCRR § 1400.3 provides, in pertinent part, as follows:

An attorney who undertakes to represent a party and enters into an arrangement for, charges or collects any fee from a client shall execute a written agreement with the client setting forth in plain language the terms of compensation and the nature of services to be rendered. The agreement, and any amendment thereto, shall be signed by both client and attorney, and, in actions in Supreme Court, a copy of the signed agreement shall be filed with the court with the statement of net worth.

Accordingly, it is hereby

ORDERED that the motion, pursuant to CPLR 3212, of defendant Joseph Mainiero is GRANTED solely to the extent that the second and third causes of action in the amended complaint are SEVERED and DISMISSED, and is otherwise denied; and it is further

ORDERED that the cross-motion, pursuant to CPLR 3212, of plaintiff Josephine Cruciata is DENIED; and it is further [*7]

ORDERED that all parties shall appear at a status conference to ascertain the status of this action on March 1, 2011, at 11:00 A.M, in Part 59, Room 103, 71 Thomas Street, New York, New York 10013.

This is the decision and order of the court.

Dated: January 14, 2011