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Charged in Murder-for-Hire Plot Against Wife, Man's Claims Against Divorce Counsel Hit Dead End
New York Law Journal
November 05, 2009
A Brooklyn judge has dismissed a legal malpractice action against a Court Street lawyer and his firm stemming from their representation of a husband in what, even by New York standards, was an extraordinarily contentious and potentially violent divorce.
In December 2003, just nine months after he was charged with soliciting his wife's murder, plaintiff Joseph Pascarella agreed to pay her $400,000 to settle their divorce.
Two-and-a-half years later, Mr. Pascarella filed suit against the counsel who represented him in the divorce proceedings, Richard S. Goldberg and his firm Goldberg, Cohn & Richter.
Mr. Pascarella claimed Goldberg and his firm failed to conduct necessary discovery and pressured him into agreeing to a settlement against his interests -- namely, an agreement that allegedly required him to transfer significant amounts of separate property to his ex-wife.
Last week, Supreme Court Justice Sylvia O. Hinds-Radix granted the defendants' motion for summary judgment. The judge concluded that, considering the pending charges against Mr. Pascarella and the precedent allowing such charges to be considered in determining equitable distribution, recommending the settlement was realistic advice.
"Under the fairly unique circumstances of the matrimonial action involving plaintiff's then-pending felony indictment for soliciting to murder [his wife, Mr. Goldberg's] advice to plaintiff to settle [his wife's] equitable distribution claim, rather than to proceed to trial, was one among reasonable courses of action," Justice Hinds-Radix wrote in Pascarella v. Goldberg, Cohn & Richter, 10612/06.
"It cannot be disputed that if the trial of the matrimonial action had actually been held, [the court] could have considered plaintiff's indictment as an additional factor in [the wife's] favor in determining her equitable distribution award," the judge said.
Joseph and Susan Pascarella were married for 17 years, from July 1984 until September 2001, when Mr. Pascarella "abandoned" the marital home, according to Hinds-Radix's decision.
The following May, Mr. Pascarella hired Goldberg to represent him in his divorce proceedings, which were before a Staten Island mediator. In September 2002, Ms. Pascarella began divorce proceedings in Brooklyn Supreme Court.
In March 2003, a Brooklyn grand jury indicted Mr. Pascarella on four counts of criminal solicitation of his wife's murder.
The couple's settlement negotiations nonetheless proceeded, and in December 2003 the parties entered into a stipulation of settlement.
The next month, Mr. Pascarella pleaded guilty to one misdemeanor count of criminal solicitation, and was sentenced to five years' probation.
In April 2006, he initiated the present action, asserting legal malpractice and breach of contract.
At the heart of Mr. Pascarella's claim is the allegation that Goldberg's pressure to settle and failure to properly advise him resulted in the inclusion in the agreement of Mr. Pascarella's separate property, including a house, the proceeds from a personal injury action and property inherited from his mother.
Goldberg contended that the settlement amount fell about halfway between the $300,000 authorized by his client in negotiations and the $450,000 pursued by Ms. Pascarella.
In April 2009, Hinds-Radix denied the defendants' motion for summary judgment, calling it "premature." Mr. Pascarella, the court noted, had not yet provided information about the separate property he allegedly gave to his wife in the settlement.
Goldberg Cohn moved for leave to reargue, and last week Hinds-Radix granted leave, then granted the firm's motion for summary judgment.
"Plaintiff's ll charge that the settlement was coerced or unfair has no merit. ... Plaintiff took the stand where he was allocuted on the settlement. He testified that he understood the settlement, wanted to accept it, and was satisfied with Goldberg's services as his counsel," the judge held. "Plaintiff's allegations in support of his claim that the settlement was a product of coercion or duress are inherently incredible and flatly contradicted by documentary evidence."
Mr. Pascarella's counsel, Joseph J. Mainiero, could not be reached for comment.
Goldberg's attorney, Matthew J. Bizarro of L'Abbate, Balkan, Colavita & Contini, declined to comment.
