Ziming Shen v Morvillo, Abramowitz, Grand, Iason, Silverberg, P.C. 2017 NY Slip Op 30500(U)  March 8, 2017  Supreme Court, County of New York  Docket Number: 150808/2016
Judge: Erika M. Edwards is a rare example of a criminal defense attorney legal malpractice case which is not dismissed on the typical grounds that plaintiff cannot show actual innocence.  Instead, it was dismissed on more familiar documentary evidence grounds.  In other words, plaintiff could not prove that defendant departed from good practice.  Defendant did not have to rely upon
“actual innocence” or “trial strategy” or “subsequent attorney malpractice” although each was available as a defense.

“Plaintiffs Ziming Shen and Joanna Fan (“Plaintiffs”) brought this action against Defendant Morvillo, Abramowitz, Grand, Jason, Silverberg, P.C. (“Defendant”) seeking to recover damages for Defendant’s alleged failure to conduct a sentencing hearing, called a Fatico hearing, in Plaintiffs federal criminal case. ”

“For the reasons set forth herein, Defendant’s motion to dismiss is GRANTED to the extent that Plaintiffs’ Amended Verified Complaint is dismissed against Defendants and Defendant’s motion for sanctions and other relief is DENIED. ”

“Plaintiffs’ claims set forth in their Amended Verified Complaint must be dismissed I because the causes of action ill the complaint are primarily based on Defendant’s alleged promise to conduct a Fatica hearing, Defendant’s failure to conduct the hearing, Defendant’s inherent conflict of interest through its joint representation of Plaintiffs and Defendant’s excessive billing without conducting the Fatica hearing. Plaintiffs now attempt to withdraw their malpractice cause of action and attempt to change their primary factual basis to Defendant’s excessive billing on unnecessary matters and for billing to prepare for a hearing they never intended to conduct. However, such alteration would still·be insufficient to support any of Plaintiffs’ remaining causes of action. Plaintiffs’ malpractice claim is also dismissed because Plaintiffs failed to demonstrate Defendant’s failure to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession andth~t such attorney’s breach proximately caused Plaintiffs’ actual damages (McCoy v Feinman, 99 NY2d 295, 301 [2002]). Plaintiffs also failed to establish that but for Defendant’s negligence, Plaintiffs would have.prevailed in the underlying matter in question (Tydings v Greenfield, Stein & Senior, LLP, 43 AD3d 680, 682 [Pt · Dept 2007]). ”

“Although Plaintiffs argue that Defendant promised to conduct a Fatico hearing in emails prior to beginning its representation, according to the evidence submitted by both parties, it is clear that Defendant never promised to conduct a Fatica hearing, but merely advised Plaintiffs in substance that they had the right to challenge the loss amount, but based on the information provided at the time, Defendant could not assess the strength of the arguments of either side. Furthermore, the retainer agreement contemplated such hearing by requiring an additional $100,000 retainer fee should a sentencing hearing be required where it would be necessary to present evidence and/or call and cross-examine witnesses regarding the loss amount and appropriate Sentencing Guidelines range. Such hearing was not promised, nor was it the sole basis for the scope of Defendant’s representation. Clearly, the documents· submitted refute Plaintiffs’ claims that Defendant made such promise.”