Halwani v Boris Kogan & Assoc., P.C.  2019 NY Slip Op 32914(U) October 4, 2019 Supreme Court, New York County Docket Number: 155241/2014
Judge: Barbara Jaffe is an example of how thing were once done, thankfully no longer how they are now done.  Electronic filing has changed a vast landscape of litigation.  Getting the papers filed, not having to go to court, having (is this an example of blockchain?) proof of filing were all things that did not exist in the recent past.  The central question in this case was what made up the appellate record?

“On plaintiff’s appeal from that order, Aurora and Barsano contended that because plaintiff had omitted some exhibits which had been submitted to the court on the motion and cross motion, the appeal should be dismissed. Plaintiff argued that the court had rejected those
exhibits and that the subpoenaed record does not include them. By order dated March 30, 2010, the Appellate Division, Second Department, held the appeal in abeyance, observing that the order appealed from did not indicate that any exhibits had been rejected. It remitted the matter to
the motion court to hear and report as to the exhibits that had been considered in determining the motions. (NYSCEF 9). As the justice who had ruled on the motions had retired, another justice held the hearing ordered by the Appellate Division and on February 6, 2012, stated that she could not determine the evidence on which the motion court had relied. (NYSCEF 21 ).

By order dated January 20, 2013, plaintiff’s appeal was dismissed due to an inadequate record. The Court held that “[u]nder these circumstances, and in light of the fact that both the plaintiffs and the defendant referenced the subject exhibits in their respective motion papers, we
must conclude that these exhibits were before the Supreme Court when it determined the motion and cross motion.” (NYSCEF 8). ”

“By summons and complaint dated May 2, 2014, plaintiff initiated this action against defendant, his counsel in the prior action, alleging that it committed attorney malpractice by failing to compile an adequate record on appeal. He maintains that he was forced to incur additional and unnecessary legal costs for an appeal that was “doomed to fail,” as well as the legal proceedings that followed the remittance of the matter for the hearing, and that he would not have suffered these damages absent defendant’s failure to compile an adequate appellate record. (NYSCEF 1).”

“To state a cause of action for legal malpractice, plaintiff must allege attorney negligence, that the negligence was the proximate cause of the loss sustained, and actual damages. (Reibman v Senie, 302 AD2d 290, 290 [1st Dept 2003]). To be negligent, an attorney’s conduct must fall below the “ordinary and reasonable skill and knowledge commonly possessed by a member of the profession.” (Bernstein v Oppenheim & Co., P.C., 160 AD2d 428, 430 [1st Dept 1990]). Dissatisfaction with an attorney’s reasonable strategic choices and tactics does not constitute a basis to state a cause of action for attorney negligence. (Kassel v Donohue, 127 AD3d 674 [1st Dept 2015], lv dismissed 26 NY3d 940 [2015]). Plaintiff must also show that “but for” defendant’s malpractice, plaintiff would not have suffered “actual ascertainable damages.”
(Pellegrino v File, 291 AD2d 60, 63 [1st Dept 2002], lv denied 98 NY2d 606 [2002]).

As plaintiff admittedly fails to demonstrate that but for defendant’s alleged negligence, plaintiff would have succeeded in the underlying litigation, he does not demonstrate,prima facie, an essential element of his claim. (See Ruotolo v Mussman & Northey, 105 AD3d 591, 592 [1st
Dept 2013], lv denied 22 NY3d 855 [2013] [dismissing complaint where “plaintiff failed to demonstrate that he would have succeeded on the merits of the underlying action ‘but for’ defendants’ alleged negligence”]). “