Marder’s Antique Jewelry, Inc. v Bolton  2018 NY Slip Op 31828(U)  July 31, 2018
Supreme Court, New York County  Docket Number: 152926/2012  Judge: Arlene P. Bluth is an excellent example of how a “legal malpractice” case becomes an unsuccessful legal malpractice case.  Practitioners and the general public are quick (and often accurate) in pointing out a departure from good practice.  A common mistake is to stop there and declare it “legal malpractice.”  It is not yet legal malpractice without the additional three elements:  proximity, “but for” causation and ascertainable damages. Hence, mistakes are not enough.

“This legal malpractice action arises from an underlying case (“Underlying Case”)
regarding Plaintiffs attempt to recover jewelry or its monetary value from Plaintiffs cousin
Toby Fischer (“Ms. Fischer”) and the Provident Loan Society of New York (“Provident”)
(NYSCEF Doc. No. 32 at 2). Plaintiff alleges that Defendant committed legal malpractice by,
inter a/ia, failing to prevent Provident from selling the jewelry. ”

“Plaintiff has been in the jewelry business for several decades. In 2004, Plaintiff took 39
items of antique jewelry from its inventory and lent them to Ms. Fischer so she could photograph
them in connection with her clothing business (NYSCEF Doc. No. 2 at 2). Instead ofretuming
all the jewelry, Ms. Fischer pawned 38 items to Provident for a loan of $16,400 (NYSCEF Doc.
No. 36 at 10).
Marder consulted with Defendant and alleges that Defendant told him that he could get
the jewelry back by paying back Ms. Fischer’s loans to Provident or he could pay Defendant
legal fees to get the jewelry back. Plaintiff chose to pay Defendant rather than paying Provident his cousin’s debt (or a negotiated lesser amount) and in November 2005, Plaintiff retained
Defendant to sue Ms. Fischer and Provident. The Underlying Complaint seeks to recover the
jewelry (replevin) or its monetary value (conversion). A preliminary injunction restraining the
sale of the jewelry was obtained. ”

“Even though Plaintiff was unable to recover the jewelry in the Underlying Case, he still
would have been able to recover the full monetary value of the jewelry, which would have been
sufficient as Plaintiff did not claim that the jewelry was sentimental or otherwise worth more
than just its monetary value (Ross v. Louise Wise Services. inc., 8 NY3d 478, 489, 836 NYS2d
509, 515-516 (2007] [holding that “compensatory damages are intended to have the wrongdoer
make the victim whole – to assure that the victim receive fair and just compensation
commensurate with the injury sustained”]). Marder is an expert at valuing antique jewelry and
could have established the value of the jewelry without inspecting the jewelry itself 1 Because
Plaintiff did not need the actual jewelry to assess its value, he was not prejudiced from the sale of
the jewelry. lfthe Underlying Case had gone to trial, then Plaintiff would have been able to
obtain a money judgment for the full value of the jewelry, regardless of whether the jewelry was
sold; this means that Plaintiff did not suffer ascertainable and actual damages, which is the crux
of a legal malpractice claim.
Any claim by Plaintiff that he desired to repossess the jewelry more than he desired to
obtain its monetary value is inconsistent with his actions. Plaintiff originally made the decision
not to pay Ms. Fischer’s loans to recover the jewelry and instead chose to pay a lawyer and commence the Underlying Case. While Marder was understandably reluctant to pay his cousin’s
debt to recover his own jewelry, pursuing legal action instead of promptly recovering the jewelry
was a business decision made by Plaintiff, not Defendant. Likewise, Plaintiffs decision to settle
instead of going to trial to prove the value of the jewelry and obtain a judgment therefor was a
business decision by Plaintiff. Plaintiffs business decisions do not constitute Defendant’s legal
malpractice. “