Silverman v Greenberg 2023 NY Slip Op 32993(U) August 28, 2023
Supreme Court, New York County Docket Number: Index No. 450304/2021
Judge: Louis L. Nock is a case in which Plaintiff strikes out. Three pitches, three strikes.
“In this legal malpractice action, Secured Worldwide, LLC (“Secured”), predecessor in
interest to American Diamond Mint LLC, and its principal, plaintiff Arthur Joseph Lipton, were represented by defendants in a federal action captioned Secured Worldwide, LLC v Kinney (No. 15 Civ. 1761, U.S. Dist. Ct., S.D.N.Y.) (the “Federal Action”). Plaintiffs herein claim that defendants committed the following acts of malpractice: failing to object to the consideration of evidence and testimony that was assertedly precluded under an earlier order of the court in the Federal Action; failing to question a witness regarding potential impeachment information; and failing to take an appeal of the adverse decision rendered in the Federal Action against Secured. Plaintiffs assert that the adverse decision was then used as the basis for a collateral estoppel finding in other action involving plaintiffs, the end-result of which led to Secured and Lipton declaring bankruptcy.”
“Plaintiffs’ argument that defendants failed to adequately object to the consideration of certain evidence and testimony regarding Secured’s relationship with nonparty GemShares is undermined by the federal District Court’s supplemental order
(NYSCEF Doc. No. 15) clarifying a prior in limine order (NYSCEF Doc. No. 4), which clarified that: “the in limine ruling does not bar either party from introducing evidence about (1) the relationship between GemShares and Secured Worldwide; (2) how Kinney became involved with Secured Worldwide . . . . Kinney’s time at GemShares provides necessary background for the claims in suit.” (NYSCEF Doc. No. 15 at 1 [emphasis added].) Thus, the court in the Federal Action had expressly held that the evidence and testimony to which plaintiffs assert defendants should have objected, was admissible”
“Additionally, and as a general matter, disagreement with an attorney’s reasonable
strategic and tactical choices is not grounds for malpractice (Iocovello v Weingrad & Weingrad, LLP, 4 AD3d 208 [1st Dept 2004]), and “hindsight . . . is an unreliable test for determining the past existence of legal malpractice” (Sklover & Donath, LLC v Eber-Schmid, 71 AD3d 497, 498 [1st Dept 2010] [internal quotation marks and citations omitted]). Further, and specifically with regard to defendants’ asserted failure to elicit impeachment evidence from a witness, the trial testimony shows that the witness had no recollection of a conversation with Kinney regarding the patent involved in the underlying dispute in the Federal Action (see, NYSCEF Doc. No. 19 at 4-5). It is unreasonable to expect that defendants should have then attempted to get the witness to impeach his own testimony after claiming that he had no recollection.
Finally, plaintiffs do not dispute that Lipton instructed defendants not to appeal the
verdict against Secured (email exchange, NYSCEF Doc. No. 20). Whether to take an appeal after an adverse judgment, is committed to the client rather than the attorney (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.2[a] [“a lawyer shall abide by a client’s decisions concerning the objectives of representation”]). Moreover, on appeal of the verdict of the court after a bench trial, the court’s findings of fact are subject to a “clear error” standard of review (Atlantic Specialty Ins. Co. v Coastal Envtl. Group Inc., 945 F3d 53, 63 [2d Cir 2019]). Plaintiffs fail to allege that an appeal would have been successful, as they do not allege facts showing that they could have reached the “clear error” standard. Accordingly, they have also failed to demonstrate that the failure to appeal was a proximate cause of any of their damages.”