Legal malpractice and related claims brought against lawyers representing a Manhattan divorce litigant who lost custody of her daughter have been dismissed because the lawyers' advice did not the proximately cause the woman's losses, but rather—at least in certain instances—her own actions did.

An Appellate Division, First Department, panel decided that plaintiff Jodi Knox's claims, including malpractice, breach of fiduciary duty and fraud against Manhattan-based law firm Aronson, Mayefsky & Sloan, must be dismissed.

She claimed the firm's negligent advice led to her losing custody of the child, but “plaintiff's alleged damages were not proximately caused by any advice given by AMS, but rather by her own subsequent failure to comply with the terms of the settlement” with her former husband, Justice Anil Singh wrote for the unanimous panel.

Singh, also addressing Knox's malpractice claim against the firm for failing to move for attorney fees from her ex-husband, said that “fails because plaintiff's various successor counsel had ample time and opportunity to make such a motion, and in fact one did (although it was purportedly abandoned).”

“Even assuming AMS was negligent in failing to move for attorneys' fees, by agreeing as part of the settlement to forgo any award of attorneys' fees except for $20,000, plaintiff cannot show that but for AMS's negligence she would not have sustained the loss,” Singh added, citing Tydings v. Greenfield, Stein & Senior, 43 A.D.3d 680, and quoting 180 Ludlow Dev. v. Olshan Frome Wolosky, 165 A.D.3d 594.

The panel's opinion came after a lengthy divorce case between Knox and James McGinnis in which Aronson Mayefsky, which claims to be the largest firm in New York City exclusively devoted to matrimonial and family law practice, at one point filed an order to show cause to be relieved as counsel to Knox due to her lack of confidence in its advice, Singh wrote.

The Dec. 27 opinion affirmed in part and modified in part a 2017 decision by Manhattan Supreme Court Justice Carmen Victoria St. George that addressed Knox's claims against Aronson Mayefsky, as well as her separate claim against a successor law firm representing her in the divorce case, Fredman Baken & Kosan. In addition to Singh, the First Department panel was composed of Rosalyn Richter, Sallie Manzanet-Daniels and Judith Gische.

The Aronson Mayefsky firm, led in the divorce action by partner Karen Robarge—also a named defendant—represented Knox in the divorce from February 2013 to October 2013, Singh wrote. During that time, Knox, also known as Jodi McGinnis, according to the opinion's caption, repeatedly expressed her desire to move for a protective order against James McGinnis, Singh added.

The firm ultimately made the protective order application as a cross-motion in response to the husband's motion to set a visitation schedule. The motion and cross-motion were resolved by a temporary stipulation, dated May 7, 2013, which gave Knox and the couple's infant daughter exclusive occupancy of the couple's Manhattan apartment and set a visitation schedule for James McGinnis, Singh wrote.

But in July 2013, Knox sought to temporarily move from Manhattan to Connecticut for foot surgery, and despite Robarge's contrary advice, she moved with the child to Greenwich, Connecticut, after apparently obtaining her husband's consent, Singh wrote.

In October 2013, the Aronson Mayefsky firm filed the order to show cause to be relieved as counsel. But before it was heard, Knox voluntarily got new counsel, Singh wrote.

In May 2014, while represented by Fredman Baken, Knox and James McGinnis entered into a stipulation of settlement that gave joint legal custody of the child, who would primarily reside with Knox. The settlement also said that Knox was required to move back to Manhattan “no later than September 1, 2014,” Singh wrote.

Knox, though, failed to move to Manhattan by the deadline. James McGinnis moved to compel her return, to transfer sole custody of the child to him, and for attorney fees, Singh wrote.

In July 2015, the Supreme Court directed Knox to pay James McGinnis' attorney fees of $132,030.60, and modified the settlement to give him sole legal and primary residential custody of the daughter. The court cited Knox's failure to timely return to Manhattan, which breached a material settlement term, and her continued exhibition of gatekeeping behavior, Singh wrote.

Knox appealed the decision, and the First Department panel affirmed the Supreme Court in March 2018 in McGinnis v. McGinnis, 159 A.D.3d 475 (1st Dept. 2018), wrote Singh.

In October 2016, Knox sued the Aronson Mayefsky firm and subsequently added a claim against Fredman Baken. In turn, Justice St. George granted Aronson Mayefsky's motion to dismiss the breach of fiduciary duty claim, but denied dismissal of legal malpractice, fraud, and Judiciary Law §487 claims, and a request for punitive damages. She also granted Fredman Baken's motion to dismiss the complaint.

Knox appealed.

Knox claimed the Aronson Mayefsky firm negligently advised her that she was permitted to move to Connecticut, resulting in the loss of custody. But Singh wrote that “alleged damages were not proximately caused by any advice given by AMS, but rather by her own subsequent failure to comply with the terms of the settlement.”

In regard to her claim of breach of fiduciary duty against Aronson Mayefsky, Singh noted that Knox sought damages for pain and mental suffering, the $132,000 she was required to pay the husband for his attorney fees, the attorney fees needed to recover custody of the child, and punitive damages.

“This claim and ensuing damages sought for the breach are duplicative of the malpractice cause of action,” Singh wrote, but “even if the two causes of action are not duplicative,” St. George was correct to dismiss the claim.

“Citing to Domestic Relations Law § 240, plaintiff contends that had the motion court considered her application for a protective order, the husband would not have gained custody of the child,” Singh wrote, but “this statute gives the court discretion and does not mandate a particular decision.”

In addition, wrote Singh, “under the settlement, plaintiff agreed to joint custody and was given primary residential custody of the child. As a matter of law, her damages, including loss of primary residential custody of the child, flow from her breach of the settlement, and not from AMS's acts or omissions.”

Richard Pu, a New York attorney representing Knox, could not be reached for comment. Nor could Deborah Isaacson, counsel at Rivkin Radler in New York representing Aronson Mayefsky and Robarge. Robarge also could not be reached. Nor could Jonathan Harwood, a partner at Traub Lieberman Straus & Shrewsberry representing Fredman Baken.