Legal Malpractice

A Complicated Commercial-Matrimonial Legal Malpractice Case

By (Andrew Lavoott Bluestone)

While the guiding principals are clear and unambiguous, the facts and calculations underlying this matrimonial legal malpractice case are daunting.  Holding companies, general partners, intra-company transfers, straw-men and the like make the financial analysis difficult.

Justice Ramos, in TPR Inv. Assoc., Inc. v Fischer;  2010 NY Slip Op 33370(U);  December 9, 2010;  Supreme Court, New York County;  Docket Number: 603509/07 teases out whether the wife may sue the attorneys over their handling of a international net of financial transactions, including the "missing million."  Rather than re-cap the financial shenanigans, we look at the guiding principals:
 

"This action for fraud and malpractice arises out of the bitter divorce between plaintiff Dalia Genger (Mrs. Genger) and her former husband, defendant Arie Genger (Mr. Genger). Plaintiff TPR Investment Associates, Inc. (TPR) is a holding company, comprised of plaintiff D&K Limited Partnership (D&K).
Mr. Genger was formerly the president, chairman, and controlling shareholder of TPR. D&K, in turn, was ninety-six percent owned by the Gengers' children, Sagi and Orly, while Mrs. Genger owned
the remaining four percent and was its general partner. The facts set forth herein are taken from the pleadings  and the Sonnenschein Defendants' Rule-19A Statement. It is noted that plaintiffs failed to comply with Part 53 Practice Rules which expressly require the submission of a Rule 19-A Statement of Undisputed Facts on summary judgment motions.

TPR's main asset was a controlling stake in non-party Trans- Resources, Inc. ( T R I ) a holding company of domestic and foreign subsidiaries that manufacture fertilizer and chemicals. From
1995 to 2005, TPR held fifty-three percent of TRI‘s shares. Former defendant William Dowd was the president of TRI and an officer of TPR, while Mr. Genger also purportedly controlled T R I .
Defendant Klimerman, a partner at Sonnenschein Nath &Rosenthal LLP (Sonnenschein) together, the Sonnenschein Defendants) represented Mr. Genger during the divorce proceedings.

To establish a claim for common law fraud, a plaintiff must demonstrate that defendants knowingly misrepresented a material fact upon which the plaintiff justifiably relied and caused 
damage (Ross v L o u i s e Wise Services, Inc., 8 NY3d 478, ).
The Sonnenschein Defendants correctly assert that the terms of the Settlement belie any  contention that Mrs. Genger justifiably relied upon M r . Genger's N e t Worth Statement, or was
damaged from any omissions. First, the Settlement states that the equitable distribution contemplated thereby is intended to "effect approximately a 50-50 distribution of their marital assets and represent and set forth a fair, reasonable and suitable distribution" of property"

"The claims against the Sonnenschein Defendants for violation of Judiciary Law 487 also must be dismissed. Plaintiffs f a i l to submit any evidence that the Sonnenschein Defendants intentionally sought to deceive the court in the divorce proceeding to the extent of the omissions. As to the Shikmim Note, Mrs. Genger only alleges 'on information and belief' that
the Sonnenschein Defendants were aware of the Shikmim Note to begin with."

Full post as published by New York Attorney Malpractice Blog on December 28, 2010 (boomark / email).