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McCoy v. Feinman11/19/2002
This opinion is uncorrected and subject to revision before publication in the Official Reports.
(*1)
This appeal involves the Statute of Limitations in a legal malpractice action implicating a Qualified Domestic Relations Order (QDRO) under the Federal Employee Retirement Income Security Act of 1974 (ERISA) (29 USC §§ 1001 et seq.). Plaintiff, the wife in an underlying divorce action, sued her former attorneys alleging that they negligently failed to secure pre-retirement death benefits under her ex-husband's employee benefit plan. The trial court and a divided Appellate Division (*2)concluded that the action was time-barred. Because neither plaintiff's stipulation of settlement nor the divorce judgment gave plaintiff a right to the survivor benefits she seeks, we conclude that the malpractice action accrued no later than the day the divorce judgment was entered. Measured from that day, this action is time-barred and we therefore affirm.
I.
Plaintiff and her former husband married in 1969. Under the husband's employee benefit plan, a surviving spouse or other designee would be eligible to receive either retirement benefits (if the employee-spouse retired) or survivorship benefits (if the employee-spouse died before retirement). The couple separated in 1985, after the husband's interest in the plan had vested. In January 1986, plaintiff hired defendant lawyer Kenneth Feinman of defendant law firm Siegel Kelleher & Kahn to represent her in the divorce . On June 23, 1987, Feinman and the husband's attorney entered the following oral stipulation of settlement, which Feinman read into the record in open court:
" t is agreed by the parties that [plaintiff] shall receive a portion of [the husband's] pension plan calculated with recourse pursuant to the formulas set forth in the case of Majauskas and Szulgit, with the percentage being calculated as follows: [plaintiff] shall receive fifty per cent of a fraction calculated by dividing the number of months of marriage to the date of the action for divorce being commenced by the number of months that [the husband] has in the plan at the time of retirement. * * * he pension shall be divided pursuant to the figures I have just indicated by recourse to a (*3)Qualified Domestic Relations Order which my office shall prepare and submit to the Court either simultaneously with or shortly after the judgment of divorce."
Feinman also stated on the record that he would submit a proposed judgment of divorce . Defendants concede that Feinman never prepared the QDRO or the judgment. Instead, the husband's attorney prepared and filed the proposed judgment, which was entered in the county clerk's office on June 14, 1988. The stipulation of settlement was incorporated but not merged into the judgment of divorce. Plaintiff's ex-husband later remarried.
Feinman also represented plaintiff in a Family Court support action against her ex-husband that concluded on July 24, 1991. There is no record evidence that plaintiff had further contact with Feinman or his firm regarding the stipulation, divorce judgment, QDRO or employee benefit plan until September 1994, when plaintiff's ex-husband died before retirement. Plaintiff -- still unaware that Feinman had never filed the QDRO -- then informed Feinman of her ex-husband's death. Over the ensuing year, defendant firm sought unsuccessfully to obtain for plaintiff the pre-retirement death benefits payable under her ex-husband's employee benefit plan. The plan administrator ultimately determined that because there was no QDRO naming plaintiff as the surviving spouse under the plan, plaintiff was ineligible under ERISA to receive pre-retirement death benefits.
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