We started discussing Sitomer v Goldweber Epstein, LLP 2015 NY Slip Op 31541(U) August 14, 2015 Supreme Court, New York County
Docket Number: 158325/13 Judge: Barbara Jaffe on Tuesday. Two witnesses were not called for plaintiff at the divorce trial.
“On September 25, 2007, the divorce trial commenced. (NYSCEF 37). By email dated October 11, 2007, defendants approached Gordon Wilde, a director of ISI Ltd., to testify “about the dilution of [plaintiffs] stock interest in [ISI Ltd.] from 100% to 50% and the call for infusion of capital into the [real estate development] project in the amount of $675,000 for [plaintiffs] share[s].” (NYSCEF 57). Defendants followed up by email on November 2 in order to meet with Wilde and prepare him for his testimony; Wilde responded shortly thereafter and directed defendants to review his fee and expenses. (NYSCEF 58). 2 [* 2] During the course of the trial, by letter dated November 7, 2007, counsel for the ISi Ltd. shareholders informed plaintiff that based on his failure to infuse capital into the company, they were “taking steps today to pay the sum of $575,000.00 into the Company’s account” and “to have the value of the shares professionally determined.” Annexed to the letter is a subscribed portion of a 2006 ISi Ltd. shareholder agreement, indicating that three entities, other than plaintiff, owned a combined 50 percent stake in ISi Ltd. (NYSCEF 45). On November 15, 2007, the Klein Liebman report was admitted in evidence. Defendant Epstein cross-examined Glenn Liebman, a Klein Liebman partner and coauthor of the report …”
Witness Vigna
“Absent a basis for refuting Klein Liebman’s valuation method, and given the court’s questioning and findings and the concern that calling Vigna would undermine plaintiffs credibility, defendants have demonstrated that their decision not to call Vigna as a witness constituted a matter of strategy that, as a matter of law, forms no basis for a finding of legal malpractice. (See O’Callaghan v Brunelle, 84 AD3d 581, 581-582 [l5t Dept 2011], Iv denied 18 NY3d 804 [2012] [prior NYSE and SEC decisions revealed that uncalled witness could not help plaintiff and thus plaintiff could not establish causation]; L.l C. Commercial Corp. v Rosenthal, 202 AD2d 644, 644-645 [2d Dept 1994], Iv dismissed 84 NY2d 841 [decision not to call witness strategic as potential testimony confusing and unfavorable to plaintiff]; see also A.H Harris & Sons v Burke, Cavalier, Lindy & Engel P.C., 202 AD2d 929, 930 [3d Dept 1994] [failure to call witness appropriate course of action absent allegation of how failure fell below attorney standard of care]). ”
Witness Wilde
For the reasons set forth (supra II.B.l.), plaintiffs allegation that defendants’ failure to call Wilde as a witness to corroborate his testimony resulted in an inflated ownership figure, states a cause of action for legal malpractice (see Iocovello v Weingrad & Weingrad, 262 AD2d 156, 157 [151 Dept 1999], abrogated on other grounds Brothers v Florence, 95 NY2d 290 [2000] [plaintiff sufficiently stated cause of action in legal malpractice whose gravaman was attorney’s failure, in personal injury action, to introduce certain documentary evidence that plaintiff had suffered “serious injury”]). Defendants’ evidence is too ambiguous to prove that Wilde decided on his own not to testify. Nor do they offer a strategic rationale for not calling him. (See Ackerman v Kesselman, 100 AD3d 577, 579 [2d Dept 2012] [defendants failed to offer reasonable strategic explanation for decision to subject plaintiff, a nonparty to a contract, to arbitration proceeding for breach of contract]).”