If it were not bad enough when Supreme Court dismissed almost all of the legal malpractice claims, in Sitomer v Goldweber Epstein, LLP  2016 NY Slip Op 04152  Decided on May 31, 2016
Appellate Division, First Department  things got even worse when Plaintiff appealed.  On this round the case was dismissed in its entirety.

The reasoning of the AD was that almost all of the choices were strategic and thus immune to legal malpractice and the balance depended on the matrimonial court’s discretion. “This malpractice action arises from defendants’ representation of plaintiff in a contentious divorce proceeding, and focuses primarily on the matrimonial court’s purported improper valuation of plaintiff’s interests in two marital assets: Blue Star Jets LLC (Blue Star) and International Star Investments Limited (ISI Ltd.). Plaintiff contends that, but for the negligence and malpractice of defendants, the court’s valuation of his interest in Blue Star and ISI Ltd. would have been lower, and that he would have had to pay his ex-wife a lower distributive award.

Plaintiff failed to state a malpractice claim regarding defendants’ failure to present independent expert testimony to rebut the court-appointed expert’s valuation report regarding Blue Star, because the record shows that defendants’ decision not to call such a witness was a strategic and reasonable one (Pouncy v Solotaroff, 100 AD3d 410, 410 [1st Dept 2012], lv denied 21 NY2d 857 [2013]). Plaintiff also has not alleged adequately that this decision was the proximate cause of his damages (Bender Burrows & Rosenthal, LLP v Simon, 65 AD3d 499, 499 [1st Dept 2009]).

Plaintiff failed to state a malpractice claim with respect to defendants’ failure to move for a reappraisal or revaluation of Blue Star and ISI Ltd., since plaintiff failed to allege adequately that such a motion would have been successful (id.), particularly given the matrimonial court’s discretion in determining valuation issues (see McSparron v McSparron, 87 NY2d 275, 287 [1995]).

Plaintiff failed to state a cause of action based on defendants’ failure to move to reargue or reconsider the divorce judgment, since the decision of whether to make such a motion is a strategic one and plaintiff has not alleged adequately that such a motion would have been successful (Warshaw Burnstein Cohen Schlesinger & Kuh, LLP v Longmire, 106 AD3d 536, 536 [1st Dept 2013], lv dismissed 21 NY3d 1059 [2013]).”