Attorneys are given the benefit of the doubt in many “strategic” decisions. Which witnesses to call, which questions to ask, which expert to use. These are all routinely held to be part of the “art” of trial, which is not a “science.”
Roth v Ostrer 2018 NY Slip Op 03218 [161 AD3d 433] May 3, 2018
Appellate Division, First Department presents a different, and somewhat rare take on the question of “strategy” v. “judgment.”
“Plaintiff alleges that defendants committed legal malpractice by withdrawing, without first consulting with him, his appeal from a November 2012 order of Supreme Court, Orange County (Lawrence H. Ecker, J.), that dismissed his CPLR article 78 petition to annul his summary termination from the Newburgh Police Department, without a pretermination hearing pursuant to Civil Service Law § 75 or Town Law § 155.
Defendants failed to demonstrate as a matter of law that their withdrawal of the appeal was not negligence but a reasonable strategic decision (see Rodriguez v Lipsig, Shapey, Manus & Moverman, P.C., 81 AD3d 551 [1st Dept 2011]). The withdrawal resulted in plaintiff’s forgoing a pretermination hearing, which would have entitled him to procedural safeguards and allowed for disciplinary measures less severe than termination. By contrast, the reinstatement hearing to which the Town of Newburgh consented upon vacatur of plaintiff’s conviction and his plea to harassment in the second degree, a violation (Penal Law § 240.26), and at which defendants represented plaintiff, was limited to whether, in the Town’s discretion, plaintiff should be reinstated to his position (see Civil Service Law § 75; Town Law § 155; Public Officers Law § 30  [e]).
The allegations in the complaint establish that but for defendants’ conduct in withdrawing the appeal from Justice Ecker’s ruling, and in sending a different lawyer than the one promised to represent him at the reinstatement hearing, he would not have incurred damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 ; see Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271-272 [1st Dept 2004]). Plaintiff showed that he would have prevailed on the appeal had it not been withdrawn, because Justice Ecker erred in concluding that plaintiff’s conviction of assault in the third degree, based on criminal negligence (Penal Law §§ 15.05 ; 120.00 ), a misdemeanor, constituted a violation of his oath of office, i.e., arose from “knowing or intentional conduct indicative of a lack of moral integrity,” and warranted termination without a hearing pursuant to Public Officers Law § 30 (1) (e) (Matter of Duffy v Ward, 81 NY2d 127, 135 ). Justice Ecker reasoned that third-degree assault was a violation of plaintiff’s oath of office merely because criminal negligence requires more than ordinary civil negligence, and that therefore it “did not negate a finding that [plaintiff] engaged in ‘knowing or intentional’ conduct within the meaning of [Public Officers Law § 30 (1) (e)]” (Matter of Roth v Town of Newburgh, Sup Ct, Orange County, Nov. 16, 2012, Ecker, J., index No. 3014/2012). In addition, the elements of criminally negligent assault in the third degree do not necessarily warrant a finding of lack of moral integrity (see Duffy, 81 NY2d at 135).”