One might engage in a plethora of unacceptable acts, yet not be responsible for legal malpractice.  How can this be?  Might one delay a case for two years and still be safe from a law suit?  Can one arrange for a client to take a 23% interest rate litigation loan, yet still avoid a claim?  The answer is definitely “yes.”

Graham v Law Offs. of Spar & Bernstein, P.C.  2020 NY Slip Op 32563(U) August 7, 2020 Supreme Court, New York County Docket Number: 155996/2019 Judge: W. Franc Perry  is a good example.    “Plaintiff commenced this action on June 17, 2019, setting forth three causes of action. First, Plaintiff alleges that S&B deviated from good and accepted practice by failing to commence Action 1 for two years and by failing to make a motion for summary judgment in a case where there was a presumption of liability because Plaintiff’s vehicle was struck in the rear. Second, Plaintiff alleges that S&B deviated from good and accepted practice by advising her to enter into the funding agreements with Golden Pear. Third, Plaintiff alleges that S&B deviated from good and accepted practice by failing to arbitrate the Plaintiff’s denial of No-Fault benefits, causing her to rely on her private health insurer for her neck surgery, resulting in a $60,000.00 medical lien. ”

“In Plaintiff’s first claim for legal malpractice, she alleges that Defendants deviated from good and accepted practice by failing to file a motion for summary judgment. She alleges that
“[a]s a result of the defendants’ negligence in not obtaining summary judgment at the earliest possible time, the plaintiff lost the benefits of having summary judgment on liability at a sooner time.” (NYSCEF Doc No. 2 at ¶ 41.)

While it is true that a rear-end collision with a stopped vehicle establishes a prima facie case of negligence (Quiros v Hawkins, 180 AD3d 500, 501 [1st Dept 2020]), Plaintiff has failed
to demonstrate a meritorious cause of action for legal malpractice. Plaintiff fails to include any specific factual allegations to support her claim that “but for” the Defendants’ failure to
expeditiously file a motion for summary judgment, she would have achieved a more favorable result. (See Crawford v Himmelstein, 2011 WL 2552326 [Sup Ct, NY County 2011], citing Wexler v Shea & Gould, 211 AD2d 450 [1st Dept 1995].) Rather, Plaintiff merely alleges in a conclusory fashion, that the motion for summary judgment could have been brought at an earlier time and that would have constituted a benefit to her. (Rodriguez v Jacoby & Meyers, LLP, 126 AD3d 1183, 1185–86, [3d Dept 2015].) Further, the prior action settled for the full amount of the prior defendants’ Geico policy; thus, a more favorable result was not possible. ”

“Geico chose to discontinue Plaintiff’s No-Fault benefits because an independent medical examination caused Geico to determine that no further treatment was necessary. Plaintiff alleges that Defendants’ choice to not arbitrate that decision constitutes legal malpractice. Defendants respond that the choice to not arbitrate was a strategic one, because if they had lost at the arbitration, Plaintiff would have been collaterally estopped from using her injuries as evidence in the forthcoming litigation.

“[A]n attorney is not held to the rule of infallibility and is not liable for an honest mistake of judgment, where the proper course is open to reasonable doubt. Thus, ‘selection of one among several reasonable courses of action does not constitute malpractice.’” (Bernstein v Oppenheim & Co., P.C., 160 AD2d 428, 430 [1st Dept 1990], citing Rosner v Paley, 65 NY2d 736, 738 [1985].) “To establish entitlement to the protection of the attorney judgment rule, an attorney must offer a ‘reasonable strategic explanation’ for the alleged negligence.” (Ackerman v Kesselman, 100 AD3d 577, 579 [2d Dept 2012].)

Here, Defendants’ course of action in not arbitrating the denial of benefits was reasonable. Collateral estoppel applies in the context of arbitration decisions regarding the denial of No-Fault benefits. (Acevedo v Holton, 239 AD2d 194 [1st Dept 1997]; Uptodate Medical Services, P.C. v State Farm Mutual Auto. Ins. Co., 23 Misc 3d 42 [2d Dept 2009]; Rozewski v  Krautmann, 151 AD3d 1945 [4th Dept 2017].) Thus, as alleged in the Complaint, Defendants’ decision does not constitute malpractice.”