In Silverman v Eccleston Law, LLC 2022 NY Slip Op 04991 Decided on August 17, 2022 Appellate Division, Second Department, Plaintiff, an attorney, took a loan from his employer, which he agreed to repay if he resigned. When he resigned, he hired a law firm to negotiate the repayment. Eventually, plaintiff had to repay the loan. He then sued for malpractice. The claim failed. From reading the decision it appears that the main departure claimed was that his attorneys did not tell him that there was little likelihood of avoiding repayment.
“The plaintiff, an attorney licensed to practice law in New York and a certified financial planner, received a loan from his former employer, Ameriprise Financial Services, Inc. (hereinafter Ameriprise), in the amount of $280,190, for which he executed a promissory note, requiring him to immediately repay the loan in full in the event of his resignation. The note required any disputes to be arbitrated pursuant to the Financial Industry Regulatory Authority (hereinafter FINRA) Code of Arbitration Procedure for Industry Disputes.
When the plaintiff decided to resign from Ameriprise, he hired the defendant law firm to negotiate with Ameriprise regarding the promissory note, and, if necessary, defend him against a note collection claim and assert counterclaims. The defendant’s main office is located in Chicago, Illinois. The plaintiff sent his correspondence with the defendant to the main office in Chicago, and, on one occasion, met with his attorneys in that city.
Ultimately, when the plaintiff failed to pay the debt, Ameriprise commenced a FINRA arbitration proceeding, held in New York, at which the defendant represented the plaintiff. The arbitration panel awarded judgment against the plaintiff and in favor of Ameriprise, requiring the plaintiff to pay the remaining balance of the note, with interest, as well as attorneys’ fees (pursuant to the terms of the note).”
“Here, accepting all facts as alleged in the amended complaint to be true and according the plaintiff the benefit of every favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88), the amended complaint failed to state a legal malpractice cause of action. In the third and fourth causes of action, the plaintiff failed to adequately allege a breach of the applicable standard of care. The “selection of one among several reasonable courses of action does not constitute malpractice” (Rosner v Paley, 65 NY2d 736, 738), and an attorney may not be held liable for “‘the exercise of appropriate judgment that leads to an unsuccessful result'” (Bua v Purcell & Ingrao, P.C., 99 AD3d 843, 846-847, quoting Rubinberg v Walker, 252 AD2d 466, 467).
The fifth cause of action failed to adequately plead that, but for the defendant’s alleged negligence, the plaintiff would have obtained a more favorable outcome. The plaintiff merely alleged that had the defendant shared with him information imparted by Ameriprise’s attorney concerning the low rate of success of challenges to note collection proceedings, he would have insisted on settlement discussions (see Katsoris v Bodnar & Milone, LLP, 186 AD3d at 1506; Janker v Silver, Forrester & Lesser, P.C., 135 AD3d 908, 909; see also Bauza v Livington, 40 AD3d 791, 793). “Conclusory allegations of damages or injuries predicated on speculation cannot suffice for a malpractice action” (Bua v Purcell & Ingrao, P.C., 99 AD3d at 848; see Janker v Silver, Forrester & Lesser, P.C., 135 AD3d at 909).”