Further analysis of 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 continues today on the issue of whether it is legal malpractice not to take an appeal for the client.  The retainer agreement tends to serve as the deciding factor here.  Another issue is whether the law firm is billing by the hour or on a contingency.

“On April 1, 2005, plaintiff hired defendants to represent him in connection with an anticipated divorce action to be commenced against him. In signing the retainer agreement, plaintiff agreed, as pertinent here, that defendants would provide services in connection with [* 1] proceedings at the trial court level only. (NYSCEF 9). On April 11, 2005, plaintiffs ex-wife commenced the divorce action in New York County. (NYSCEF 10). At that time, in addition to his interest in ISI Ltd., plaintiff had an ownership interest in Blue Star Jets, LLC. (NYSCEF 8, 37). ”

“On September 20, 2010, the judgment of divorce was entered and served with notice of entry on September 21, 2010. The court directed the equitable distribution of plaintiffs ownership interests in Blue Star and ISI Ltd. in accordance with the December 2008 decision. (NYSCEF 20). By email dated October 5, 2010, Epstein alerted plaintiff that she would draft a notice of appeal to protect plaintiffs rights, and asked ifhe wanted “to proceed with an application before [the presidingjustice], as well?”(NYSCEF 22). By email dated November 29, 2010, defendants asked plaintiff, among other things, if he was “proceeding with the Appeal?” They also advised that there were deadlines to be met and a need to compile the record on appeal. (NYSCEF 25). By email dated April 13, 2010, Epstein reminded plaintiff of the approaching deadline, that she his decision as to whether he wanted to pursue the appeal, that it would cost between $20,000 and $30,000 for the record alone, and that a new retainer had to be signed by him for the appeal. She otherwise informed him that she had completed a motion for a downward modification but awaited his net worth statement. (NYSCEF 26). Later that same day, plaintiff inquired as to “where are our odds better??” Epstein replied that she did not believe an appeal would be successful, but advised him to obtain a second opinion. (NYSCEF 27). ”

“By email dated March 10, 2011, at 5:33 pm, Epstein advised plaintiff that she was “working on papers.” On the same day, at 5:35 pm, plaintiff emailed defendants, “Hi guys, what[‘]s doing with the appeal to [the presiding justice]?” (NYSCEF 46 [emphasis omitted]). By email dated June 7, 2011, defendants requested a $5,000 retainer fee to draft a prenuptial agreement in an unrelated matter and again alerted plaintiff of the deadline for filing the appeal, to which plaintiff replied that he “thought the appeal was well under way already.” Defendants promptly responded, “How can it be underway when we never got any funds for the record or to work drafting the appeal[.] I told you it would cost about $40,000 to get record and do briefl.] You need to pay up front[.]” (NYSCEF 28). On October 5, 2011, plaintiff obtained defendants’ consent to substitute counsel. (NYSCEF 29). ”

Generally, the Appellate Division is limited to reviewing the record on appeal and may not consider evidence dehors the record (Constantine v Premier Cab Corp., 295 AD2d 303, 304 [2d Dept 2002]), unless its accuracy is undisputed (Bravo v Terstiege, 196 AD2d 473, 476 [2d Dept 1993]). Here, the parties’ email exchanges reflect that defendants apprised plaintiff of his right to appeal, the deadline for pursuing it, and the attendant costs. Even if defendants’ March 10, 2011 email was written in reply to plaintiffs email, it only demonstrates that defendants were working on papers to be submitted to the trial court, not on an appeal from the judgment. And, if not sent in response to plaintiffs email, defendants’ email does not prove that defendants were working on an appeal of the judgment. Moreover, the correspondence reflects plaintiffs appreciation of the difference between relief at the trial court level and an appeal of the judgment. Even assuming that defendants failed to accede to plaintiffs request that they file an appeal of the judgment, the evidence on which plaintiff relies is dehors the record and inadmissible on appeal absent any evidence that it is undisputed. (See Gagen v Kipany Prods. Ltd., 289 AD2d 844, 846 [3d Dept 2001] [court did not consider arguments based on documents 20 [* 20] outside the record]). Thus, plaintiffs evidence is insufficient to establish that an appeal would have been successful, particularly where, as here, the trial court acted within its broad discretion in appraising his businesses. (See MacDonald v Guttman, 72 AD3d 1452, 1456 [3d Dept 2010] [notwithstanding plaintiffs claim of appeal’s likelihood of success based on her denial of evidentiary hearing, lower court had no obligation to hold such hearing and could accept or reject certain evidence on its own initiative]; Weiner v Hershman & Leicher, P.C., 248 AD2d 193, 193 [1st Dept 1998] [plaintiff failed to allege specific facts to show lower court had improperly resolved issues and thus an appeal would likely be successful]). For all of these reasons, defendants have satisfactorily demonstrated both the baselessness of plaintiffs allegation that they committed malpractice in failing to pursue an appeal, and that, in any event, there is no significant dispute that it would have been unsuccessful.”