Icahn v. Todtman | . . | October 01, 2001 | tnorris.jd15

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Icahn v. Todtman

Original Creator: Joseph William Singer Current Version: tnorris.jd15
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United States District Court, S.D. New York.

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Liba ICAHN, Plaintiff,

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v.

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TODTMAN, NACHAMIE, SPIZZ & JOHNS, P.C., Defendant.

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No. 99 CIV 11783(WHP).

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Oct. 1, 2001. 

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Edward Rubin, Esq., New York, for Plaintiff.

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William S. Beslow, Esq., New York, for Plaintiff.

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Philip S. Kaufman, Esq., Kramer Levin Naftalis & Frankel, LLP, New York, for Defendant. 

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MEMORANDUM & ORDER

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PAULEY, District J.

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This is a diversity action for legal malpractice arising out of the legal representation of plaintiff Liba Icahn (“Icahn”) by the defendant law firm Todtman, Nachamie, Spizz, & Johns, P.C. (the “Todtman Firm”) in a New York divorce action. Icahn, a Connecticut resident, alleges that the Todtman Firm, a New York corporation, erred by recommending that she commence divorce proceedings in New York rather than Connecticut. The Todtman Firm moves for summary judgement on the following grounds: (1) the relevant rules of evidence bar Icahn from offering evidence regarding the advice of the Todtman Firm, (2) New York's statute of limitations bars this action, and (3) Icahn cannot establish “but-for” causation. For the reasons set forth below, defendant's motion is denied.

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BACKGROUND

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In the summer of 1978, plaintiff Liba Icahn, then a 28 year-old interior design trainee, and Carl Icahn, then a 41 year-old millionaire, met and began dating. (Def.'s 56.1 Stmt. ¶¶ 1-2.) After the couple dated for eight months, she learned that she was pregnant. (Def.'s 56.1 Stmt. ¶ 1.) Carl Icahn told Liba Icahn that he would marry her if she signed a prenuptial agreement, and recommended that she consult an attorney. (Def.'s 56.1 Stmt. ¶ 3.) In February or March 1979, Liba Icahn met with and retained an attorney to advise her on the prenuptial agreement. (Def.'s 56.1 Stmt. ¶ 4.)

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On March 20, 1979, the day before her wedding, Icahn and her friends reviewed a prenuptial agreement provided that day by Carl Icahn. (Aff. of Phillip S. Kaufman, dated Sept. 28, 2000 (“Kaufman Aff.”) Ex. 2: Liba Icahn Dep. at 88-89.) After friends advised her that the agreement provided very little for her, Liba Icahn told Carl Icahn that she did not want to sign it. (Kaufman Aff. Ex. 2: Liba Icahn Dep. at 92.) Carl Icahn reiterated that he would not marry her without a prenuptial agreement. (Kaufman Aff. Ex. 2: Liba Icahn Dep. at 93.)

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The next day, Liba Icahn met with her attorney just hours before her wedding to discuss the prenuptial agreement. (Def.'s 56.1 Stmt. ¶ 5.) The attorney reviewed each paragraph of the agreement, explained its terms, and advised her that the agreement was extremely favorable to Carl Icahn. (Def.'s 56.1 Stmt. ¶ 5.) Icahn understood that under the agreement, she was “not getting anything.” (Def.'s 56.1 Stmt. ¶ 5.) Icahn's attorney advised her that if she did not marry Carl Icahn, she could commence a paternity suit against him. (Def.'s 56.1 Stmt. ¶ 6.) Icahn opted to sign the agreement and married Carl Icahn that evening. (Def.'s 56.1 Stmt. ¶¶ 11-12.) 

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In 1993, Icahn retained Carl Tunick (“Tunick”), then a member of the Todtman Firm, to represent her in divorce proceedings against her husband. (Def.'s 56.1 Stmt. ¶ 14.) Tunick was the only member of the Todtman Firm who provided legal counsel to Icahn. (Def.'s 56.1 Stmt. ¶ 23.) In October 1993, Liba Icahn filed an action for divorce against Carl Icahn in New York State Supreme Court in Westchester County. (Def.'s 56.1 Stmt. ¶ 13.) Icahn claimed that the prenuptial agreement should be declared unenforceable on the grounds that she signed it under duress and coercion and that it provided for an unconscionable distribution of marital assets.[1] (Def.'s 56.1 Stmt. ¶ 15.)

18

On November 15, 1994, Carl Icahn moved for partial summary judgment dismissing Liba Icahn's claims regarding coercion and duress. (Def.'s 56.1 Stmt. ¶ 17.) Carl Icahn argued, inter alia, that her claim to rescind the prenuptial agreement was barred by New York's six-year statute of limitations. (Def.'s 56.1 Stmt. ¶ 17.) Liba Icahn asserted that the statute of limitations should be tolled during the marriage.

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On April 25, 1995, the trial court found that Liba Icahn's claim accrued fourteen years earlier when she executed the prenuptial agreement. Therefore, her claim was time-barred. (Def.'s 56.1 Stmt. ¶ 18.) The court did not consider the merits of her claims of duress, coercion, or unconscionability. (Def.'s 56.1 Stmt. ¶ 18.)

20

Following the trial court's decision, Icahn's confidence in Tunick's abilities waned. (Kaufman Aff. Ex. 3: Icahn Dep. at 196.) Icahn retained additional appellate counsel and appealed the partial grant of summary judgment. (Def.'s 56.1 Stmt. ¶ 20.) On November 12, 1996, the Appellate Division affirmed the trial court's grant of partial summary judgment. (Def.'s 56.1 Stmt. ¶ 19.) After the appellate court's decision, Icahn again sought new counsel. (Kaufman Aff. Ex. 3: Icahn Dep. at 236.) The Todtman Firm performed no services for Icahn after November 27, 1996. (Def.'s 56.1 Stmt. ¶ 22.) Although Icahn spoke with Tunick by phone in December 1996, she does not recall discussing anything other than a request by Tunick to transfer her file to his new law firm. (Def.'s 56.1 Stmt. ¶ 22.) Icahn denied his request. (Def.'s 56.1 Stmt. ¶ 22.)

21

On January 6, 1997, Icahn executed a consent to change attorneys in her matrimonial litigation. (Pl.'s 56.1 Stmt. ¶ 2.) Todtman executed the consent agreement on February 6, 1997. (Pl.'s 56.1 Stmt. ¶ 3.) On July 20, 1999, the Icahns settled their dispute; Liba Icahn obtained a divorce on the ground of abandonment and received $20 million and various other assets from the marital estate. (Def.'s 56.1 Stmt. ¶ 25.) Tunick is now deceased. (Def.'s 56.1 Stmt. ¶ 25.)

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On December 3, 1999, Icahn commenced this action alleging that the Todtman Firm committed legal malpractice by advising her to file a divorce action in New York rather than moving to Connecticut and filing in that forum to avoid New York's statute of limitations.

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DISCUSSION

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I. Summary Judgment Standard

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Rule 56(c) of the Federal Rules of Civil Procedure provides that summary judgment “shall be rendered forthwith if the pleadings, depositions, answers to interrogatories and admissions on file, together with the affidavits, if any, show there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c); see also Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 2552 (1986); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247, 106 S.Ct. 2505, 2509-10 (1986). The burden of demonstrating the absence of any genuine dispute as to a material fact rests with the moving party. See, e.g., Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608 (1970); Grady v. Affiliated Cent., Inc., 130 F.3d 553, 559 (2d Cir.1997). In evaluating the record to determine whether there is a genuine issue of material fact, “[t]he evidence of the nonmovant is to be believed, and all justifiable inferences are to be drawn in his favor.” Liberty Lobby, 477 U.S. at 255, 106 S.Ct. at 2513.

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If the moving party meets its initial burden, the non-moving party must come forward with “specific facts showing that there is a genuine issue for trial.” Fed.R.Civ.P. 56(e). The non-moving party must “do more than simply show there is some metaphysical doubt as to the material facts.” Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586, 106 S.Ct. 1348, 1355 (1986). The applicable substantive law determines which facts are critical and which are irrelevant. See Liberty Lobby, 477 U.S. at 248, 106 S.Ct. at 2510. 

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II. Statute of Limitations for Icahn's Malpractice Claim

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Under New York law, a legal malpractice claim must be commenced within three years of the alleged malpractice. See N.Y. C.P.L.R. 241[6]; see also Panigeon v. Alliance Navigation Line Inc., No. 96 Civ. 8350(SAS), 1997 WL 473385, at *3 (S.D.N.Y. Aug. 19, 1997). It is undisputed that Todtman's act of alleged malpractice occurred on June 14, 1993, more than three years before commencement of this action. Icahn asserts that the three-year statute of limitations should be tolled for a period that the Todtman Firm continued to represent her.

29

The rationale underlying tolling during the period of continuous representation is that “the client has a right to presume the professional's ability and good faith, and realistically cannot be expected to question and assess the techniques employed or the manner in which the services are rendered ... or to jeopardize his pending case or his relationship with the attorney handling that case.” Glamm v. Allen, 57 N.Y.2d 87, 93, 453 N.Y.S.2d 674, 678 (1982); see also Greene v. Greene, 56 N.Y.2d 86, 94, 451 N.Y.S.2d 46 (1982). The tolling ceases once a client loses trust and confidence in the attorney. See Aaron v. Romer, Wallens & Mineaux, LLP, 272 A.D.2d 752, 755, 707 N.Y.S.2d 711, 715 (3d Dep't 2000); Pittelli v. Schulman, 128 A.D.2d 600, 601, 512 N.Y.S.2d 860, 861 (2d Dep't 1987). 

30

The question of continuous representation is usually one for the trier of fact. See In re Investors Funding Corp. of N.Y. Sec. Litig., 523 F.Supp. 533, 548 (S.D.N.Y.1980) (citing Gnoj v. New York, 29 A.D.2d 404, 288 N.Y.S.2d 368, 369 (1st Dep't 1968)). Broad allegations that counsel continued representation do not merit the application of the continuous representation doctrine “in the absence of more specific allegations that the matters which gave rise to the claim were ongoing matters in which the plaintiff is represented.” See Panigeon, 1997 WL 473385, at *5 (S.D.N.Y.1997). To invoke the continuous representation doctrine, a plaintiff must demonstrate “(1) ongoing representation in connection with the specific matter from which the malpractice arose and (2) clear indicia of an ongoing, continuous developing and dependent relationship between the client and the attorney.” Nobile v. Schwartz, No. 99 Civ. 2375(RWS), 2000 WL 1753036, at *8 (S.D.N.Y. Nov. 29, 2000); Panigeon, 1997 WL 473385, at *4.

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On December 3, 1999, Icahn commenced this diversity action. For it to be timely, the Todtman Firm must have represented Icahn until at least December 3, 1996. Icahn concedes that her confidence in Tunick diminished after April 25, 1995 when the trial court granted partial summary judgment. ( See Kaufman Aff. Ex 3: Icahn Dep. at 196, 236.) However, the Todtman Firm continued to bill Icahn for legal services as late as November 27, 1996. In addition, Icahn offers a letter dated December 23, 1996 from the Todtman Firm advising her appellate counsel that it had been served with the trial court's summary judgment decision and a notice of entry and requesting further instructions. Those circumstances present a question of fact as to whether the Todtman Firm continued to represent Icahn past December 3, 1996. See Baff v. Redfield Blonsky & Co., No. 93 Civ. 3596(MBM), 1995 WL 242107, at *3 (S.D.N.Y. Apr. 26, 1995) (exhibits demonstrating investment firm's professional advice defeated motion for summary judgment based on allegation that no advice was ever given); Gray v. Wallman & Kramer, 224 A.D.2d 275, 275-76, 638 N.Y.S.2d 18, 19 (1st Dep't 1996) (question of fact existed where law firm accepted service of complaint and forwarded to client's new counsel). Accordingly, defendant's motion for summary judgment based on the three-year statute of limitations is denied.

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III. Dead-Man's Statute

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The Todtman Firm contends that Icahn cannot offer evidence of Tunick's alleged malpractice because her only evidence, her conversations with Tunick regarding the legal strategy of her divorce, is barred by New York's “Dead Man's Statute.” (See Def.'s Mem. in Supp. at 13.)

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Rule 601 of the Federal Rules of Evidence provides in part that “in civil actions and proceedings, with respect to an element of a claim or defense as to which State law supplies the rule of decision, the competency of a witness shall be determined in accordance with State law.” Here, it is not disputed that New York law governs Icahn's legal malpractice claim.

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New York's “Dead Man's Statute” provides in part:

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[u]pon the trial of an action or the hearing upon the merits of a special proceeding, a party or a person interested in the event, ... shall not be examined as a witness in his own behalf or interest, ... against ... a person deriving his title or interest from, through or under a deceased person ..., by assignment or otherwise, concerning a personal transaction or communication between the witness and the deceased person ....

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N.Y. C.P.L.R. § 4519. 

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However, evidence that is “otherwise relevant and competent upon a trial or hearing, but subject to exclusion on objection under the Dead Man's Statute, should not predetermine the result on summary judgment in anticipation of the objection.” Phillips v. Joseph Kantor & Co., 31 N.Y.2d 307, 310, 338 N.Y.S.2d 882, 883 (1972); see also Silverstein v. Smith Barney, Inc., No. 96 Civ. 8892(JSM), 1999 WL 33291, at *1 (S.D.N.Y. Jan. 22, 1999) (although New York's Dead Man' Statute may ultimately bar testimony regarding communications with a deceased party, affidavits about those communications were properly before the court on the motion for summary judgment) vacated and remanded on other grounds Silverstein v. Smith Barney, Inc., No. 00-7627, 2001 WL 883549 (2d Cir. Aug. 7, 2001); accord Josephson v. The Crane Club, Inc., 264 A.D.2d 359, 360, 694 N.Y.S.2D 376, 377-78 (1st Dep't 1999); Silvestri v. Iannone, 261 A.D.2d 387, 388, 689 N,Y.S.2d 241, 242 (2d Dep't 1999). Compare Tancredi v. Mannino, 75 A.D.2d 579, 580, 426 N.Y.S.2d 577, 578 (2d Dep't 1980) (defense consisting solely of evidence that might be excludable at trial by reason of Dead Man's Statute was sufficient to defeat summary judgment) with Albany Sav. Bank v. Seventy-Nine Columbia St., 197 A.D.2d 816, 816, 603 N.Y.S.2d 72, 73 (3d Dep't 1993) (summary judgment granted where sole evidence to defense of a cross claim was rendered inadmissible by New York's Dead Man's Statute). Accordingly, defendant's motion for summary judgment based on the exclusion of evidence under New York's Dead Man's Statute is denied.

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IV. “But-For” Causation

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The Todtman Firm offers a trident of reasons why Icahn cannot establish “but-for” causation. First, the defendant contends that a Connecticut court would have barred Icahn's complaint under New York's statute of limitations. Second, the Todtman Firm asserts that Icahn's complaint did not state a prima facie case of duress or coercion under New York law. Finally, the Todtman Firm asserts that Icahn's damages claim is too speculative to support her legal malpractice claim.

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A. Timeliness in the Connecticut Forum

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The Todtman Firm asserts that had Icahn filed her action to rescind the prenuptial agreement in Connecticut, a Connecticut state court would have applied New York's statute of limitations pursuant to the prenuptial agreement's choice-of-law clause.

43

Where a statute of limitation is considered procedural, the law of the forum applies. Somahomo v. Somahomo, 615 A.2d 181 (1992) (Conn App.1992); see also Messler v. Barnes Group., Inc., No. CV 960560004, 1999 WL 61034, at *3 (Conn.Super.Feb. 1, 1999) (Connecticut courts will apply the procedural law of the forum state irrespective of the substantive law determined by a choice-of-law provision.). “A statute of limitation is generally considered to be procedural, especially where the statute contains only a limitation as to time with respect to a right of action and does not itself create the right of action.” Jones Destruction, Inc. v. Upjohn, 161 Conn. 191, 195, 286 A.2d 308 (1971); see also Antonios v. Farmers Ins. Exch., No. Civ. 930117917S, 1998 WL 165065, (Conn.Super.Apr. 2, 1998); Cafferty v. Scotti Bros. Records, Inc., 969 F.Supp. 193, 203 (S.D.N.Y.1997); Insurance Co. of North Am. v. ABB Power Generation, Inc., 925 F.Supp. 1053, 1059 (S.D.N.Y.1996); Collucci v. Sears, Roebuck and Co., 585 F.Supp. 529, 532 (D.Conn.1984). But see, Baxter v. Strum, Ruger & Co., 644 A.2d 1297 (1994) (statute of limitations is substantive where the right of action did not exist at common law but was created by statute).

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Under current Connecticut law,

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[a]ny statute of limitations applicable to an action asserting a claim for relief under a premarital agreement[2] is tolled during the marriage of the parties to the agreement, except that equitable defenses limiting the time for enforcement, including laches and estoppel, shall be available to either party. 

46

Conn. Gen.Stat. § 46b-36i. However, that tolling provision took effect on October 1, 1995 and applies only to premarital agreements executed on or after that date. See Conn. Gen.Stat. § 46b-36j; see, e.g., Pite v. Pite, No. FA 99-0429262S, 2001 WL 238144, at *5 (Conn.Super.Feb. 20, 2001). Nevertheless, Connecticut courts most likely would have tolled Connecticut's contractual statute of limitations in equity and considered Icahn's claims of unconscionability, duress, and coercion to be timely. See Pite, 2001 WL 238144, at *1, 5 (reviewing a premarital agreement executed in August 1986); Lakin v. Lakin, No. FA 970327718S, 1999 WL 1320464, at *19-20 (Conn.Super.Dec. 6, 1999) (reviewing a premarital agreement executed in 1986); Baumgartner v. Baumgartner, No. FA 960155390S, 1998 WL 811565, at *2-4 (Nov. 9, 1998) (reviewing premarital agreement executed on June 21, 1988) Brooks v. Brooks, No. FA 950143086S, 1997 WL 297586, at *1 (May 20, 1997, Conn.Super.) (reviewing agreement executed in 1987).

47

Moreover, while the trial judge determined that Icahn's marriage did not toll the statute of limitations under New York law, a Connecticut court applying New York law may not have reached the same conclusion because New York courts lack consensus on that tolling principle. Compare Rubin v. Rubin, 275 A.D.2d 404, 405, 712 N.Y.S.2d 626, 627 (2d Dep't 2001), with Bloomfield v. Bloomfield, 723 N.Y.S.2d 143, 146 (1st Dep't 2001). See also Dubovsky v. Dubovsky, 725 N.Y.S.2d 832, 834-35 (Nassau County Sup.Ct.2001) (“[W]hile this Court notes its agreement with the reasoning of the Appellate Division, First Department, in Bloomfield ..., it is constrained to follow the well established law in the Appellate Division, Second Department which unequivocally holds that the existence of a viable marriage does not toll the Statute of Limitations with regard to challenges to prenuptial agreements.”) (citing Rubin, 275 A.D.2d at 405, 712 N.Y.S.2d at 627). Thus, a Connecticut court could have found that the statute of limitation was tolled under New York law. Accordingly, the Todtman Firm's motion for summary judgment on the ground that Icahn's underlying claim would have been time-barred is denied. 

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B. Merits of Icahn's New York Divorce Action

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The Todtman Firm also asserts the self-contradictory proposition that Icahn “cannot show that any court-either in New York or Connecticut-would have sustained her claim to set aside the prenuptial agreement on the merits” because she cannot “prove that she had been compelled to sign the agreement by threats of unlawful conduct, and that those threats had operated to deprive her of the exercise of free will.” (Def.'s Mem. in Supp. at 20.) This assertion starkly contrasts with the Todtman Firm's posture as Icahn's attorneys in the divorce action. 

50

Icahn's prenuptial agreement contained a New York choice of law provision. Under Connecticut law, “parties to a contract generally are allowed to select the law that will govern their contract, unless either: ‘(a) the chosen state has no substantial relationship to the parties or the transaction and there is no other reasonable basis for the parties' choice, or (b) application of the law of the chosen state would be contrary to a fundamental policy of a state which has a materially greater interest than the chosen state in the determination of the particular issue and which ... would be the state of the applicable law in the absence of an effective choice of law by the parties.” ’ Elgar v. Elgar, 679 A.2d 937, 942 (Conn.1996) (citing Restatement (Second) of Conflict of Laws §§ 187-88). The parties do not dispute that New York had a substantial relationship to the Icahns' marriage. Further, a Connecticut court “would consider the relative policy interests only if Connecticut has a materially greater interest than New York in deciding the validity of the antenuptial agreement.” See Elgar, 679 A.2d at 944. The Icahn's were married in New York, they remained married residents of New York for more than fourteen years, and they executed the prenuptial agreement in New York. Thus, Connecticut does not have a “materially greater” interest than New York in determining the validity of the prenuptial agreement. See Elgar, 679 A.2d at 944 (despite decedent's “significant contacts” with Connecticut, including being a Connecticut resident and his estate being probated in Connecticut, Connecticut's interests were not “materially greater” where plaintiff was a New York resident and deceased husband maintained his business in New York.) Accordingly, a Connecticut court would most likely apply New York law.

51

The Todtman Firm also asserts that Icahn could not have sustained her claim to rescind the prenuptial agreement because she could not prove that “she had been compelled to sign the agreement by threats of unlawful conduct, and that those threats operated to deprive her of free will.” (Def. Mem. in Supp. at 20.) However, Icahn's action to rescind the prenuptial agreement claimed not only that it was the product of duress and coercion, but also that it was unconscionable. ( See Kaufman Aff. Ex. 5: Amended Verified Compl. ¶ 20.) Thus, Icahn could have sustained a claim without establishing fraud or duress. See Bloomfield, 281 A.D.2d 301, 305, 723 N.Y.S.2d 143, 146 (1st Dep't 2001) (A prenuptial agreement that “provides for no division of property at the end of the marriage, without regard for when, how or why it ends, and absolutely no right of election, is manifestly unfair.”). Accordingly, the Todtman Firm's motion for summary judgment on the ground that she could not have prevailed on her underlying claim is denied.

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C. Speculative Damages

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The Todtman Firm further contends that Icahn's claimed injury is too speculative to sustain a damages award.

54

Icahn seeks $1.4 billion, representing one-third of Carl Icahn's purported net worth. (Compl.¶ 58.) Icahn asserts that by either bringing the action in Connecticut or “do[ing] nothing except beg[ging] Carl Icahn for money,” Todtman could have won “even a moderate share” of Carl's Icahn's assets amounting to “tens or hundreds of millions of dollars” (Pl.'s Mem. in Opp. at 9, 10.) However, the Todtman Firm's strategy did not preclude Icahn from bringing her action in Connecticut. 

55

When Mrs. Icahn did actually move to Connecticut in 1998 after four years of litigation in New York, she brought suit there. Her husband moved to dismiss the Connecticut suit on the grounds that it was an obvious attempt to do an end run around the statute of limitations decision reached by the Supreme Court, Westchester County and affirmed by the Appellate Division, Second Department during the four years of litigation in New York. Even in those circumstances, however, the Connecticut court rejected the charge of forum shopping and sustained its jurisdiction over Mrs. Icahn's suit, deferring the merits to a later day.

56

(See Pl.'s Mem. in Opp. at 10.); see also Icahn v, Icahn, No. 980168862S, 1999 WL 417580, at *3 (Conn.Super. June 9, 1999) (denying Carl Icahn's motion to dismiss for lack of subject matter jurisdiction and reserving decision on the issues of collateral estoppel, res judicata, and the finality of the New York judgment until it was presented with the prenuptial agreement). Rather than pursue the matter in Connecticut, Icahn settled for $20 million. Thus, Icahn cannot claim in this action that the Todtman Firm's advice precluded her from pursuing her “move and sue” tactic. See First Fed. Sav. & Loan Assoc. of Rochester v. Dietz Int'l Public Adjusters, Inc., 143 A.D.2d 45, 48 (1st Dep't 1988) (Where plaintiff's own act resulted in a particular outcome, “any other conclusion must rest on the sheerest of speculation.”).

57

Moreover, whether Icahn would have won more than $20 million if she prevailed in Connecticut or New York is sheer speculation. “The rule for proof of damages in legal malpractice is stringent. The lawyer's conduct must have caused damages that are actual and ascertainable. ‘Mere speculation of a loss resulting from an attorney's alleged omissions is insufficient to sustain a prima facie case in malpractice.” ’ Schweizer v. Mulvehill, 93 F.Supp.2d 376, 395 (S.D.N.Y.2000) (citing Luniewski v. Zeitlin, 188 A .D.2d 642, 643, 591 N.Y.S.2d 524, 526 (2d Dep't 1992) (Plaintiff will not prevail on a malpractice claim where the damages are hypothetical and “incapable of being proven with any reasonable certainty.”)); see also Zarin v. Reid & Priest, 184 A.D.2d 385, 387-88, (1st Dep't 1992) (Damages claimed in a legal malpractice action must be “ ‘actual and ascertainable’ resulting from the proximate cause of the attorney's negligence.”); Phillips Smith Specialty Retail Group v. Parker Chapin Flattau & Kimpl, LLP, 265 A.D.2d 208, 210, 696 N.Y.S. 150, 151 (1st Dep't 1999) (“Contentions underlying a claim for legal malpractice which are ‘couched in terms of gross speculations on future events and point to the speculative nature of plaintiffs' claim” are insufficient as a matter of law to establish that defendants' negligence, if any, was the proximate cause of plaintiffs' injuries.”); Tilden v. Profeta & Eisenstein, 236 A.D.2d 292, 293, 654 N.Y.S.2d 10, 10-11 (1st Dep't 1997) (malpractice claim based on attorney's failure to file timely a notice of appeal was “too speculative” to raise a genuine issue of fact with respect to proximate cause). The speculative nature of what Icahn “might have recovered at trial is precisely the risk that her pre-trial settlement avoid[ed].” Schweizer, 93 F.Supp.2d at 395; see also Perkins v. Norwick, 257 A.D. 48, 51, 693 N.Y.S.2d 1, 3 (damages based on what non-parties “might” or “would” have done are “couched in terms of gross speculation”).

58

Thus, Icahn's damages based on an award she would have won from her ex-husband if not for the Todtman's Firm's alleged malpractice are too speculative to maintain a claim. However, Icahn's claim for “hundreds of thousands of dollars in [wasted] legal fees,” (Pl.'s Mem. in Opp. at 9), is quantifiable. ( See Kaufman Aff. Ex. 19: Billing Memorandum.) Accordingly, the Todtman Firm's motion for summary judgment on the ground that Icahn's damages are speculative is denied to the extent that she may seek to recover the attorney's fees and costs expended in the underlying action. 

59

CONCLUSION

60

For the reasons set forth above, the defendant's motion for summary judgment is denied. A pretrial conference is scheduled for October 19, 2001 at 3:00 p.m.

61

SO ORDERED.

62

[1] Icahn initially alleged that the prenuptial agreement was also a product of fraud because Carl Icahn had misrepresented his income and assets. Icahn dropped this claim after testifying in a deposition that she had not relied on the information in his net worth statement when she signed the agreement. (Def.'s 56.1 Stmt. ¶ 16.)

[2] Connecticut law provides that “[n]o action ... on any contract in writing [ ] shall be brought but within six years after the right of action accrues” except when the action “is barred in the state of the otherwise applicable law by a statute of limitations which bars the right and not merely the remedy.” Conn. Stat. Ann. § 142-43.

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June 02, 2014

"Icahn v. Todtman"

Icahn v. Todtman

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