Police officer is out sick. Police Department rule is that you must stay in your home, and they go to great lengths to check up on those officers. In Pannone v Silberstein 2014 NY Slip Op 03944 [118 AD3d 413] June 3, 2014 Appellate Division, First Department the officer was subject to a disciplinary hearing and he was fired. His remedy was an Article 78 challenging whether the decision was arbitrary and capricious. That article 78 was lost because the attorney did not timely perfect. Legal malpractice? Violation of Judiciary Law 487?
No to both. "To recover damages for legal malpractice, a [*2]plaintiff must demonstrate that the attorney defendant " ’failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]). "To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence" (id.). The court below granted defendants’ motions for summary judgment, finding the "but for" element lacking because plaintiff would not have prevailed in the underlying article 78 proceeding. We agree.
The giving of false statements in the course of an official investigation has been upheld as a ground for dismissal from municipal employment (see Matter of Duncan v Kelly, 9 Misc 3d 1115[A], 2005 NY Slip Op 51558[U] [Sup Ct, NY County 2005] [also involved a GO-15 interview], affd 43 AD3d 297 [1st Dept 2007], affd 9 NY3d 1024 [2008]; see also Matter of Loscuito v Scoppetta, 50 AD3d 905 [2d Dept 2008], lv denied 13 NY3d 716 [2010]). There is no merit to plaintiff’s argument that the state of the law in 2000, when the article 78 proceeding was brought, would have dictated a different result (see e.g. Matter of Swinton v Safir, 93 NY2d 758, 763 [1999] [dishonest statements to police department investigators constituted an independent basis for dismissal]).
The cause of action based on Judiciary Law § 487 was properly dismissed inasmuch as the record does not establish a "chronic and extreme pattern of legal delinquency" (Kinberg v Opinsky, 51 AD3d 548, 549 [1st Dept 2008] [internal quotation marks omitted]). The breach of contract cause of action, which is based on defendants’ alleged failure to represent plaintiff in a professional manner, was also properly dismissed. A breach of contract claim premised on an attorney’s failure to exercise due care or to abide by general professional standards is nothing more than a malpractice claim (Sage Realty Corp. v Proskauer Rose, 251 AD2d 35, 38-39 [1st Dept 1998]).
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