Plaintiff loses an appeal to the Second Circuit, and sues the Attorneys in Jackson v Law Offs. of Peter Sverd, PLLC 2024 NY Slip Op 30413(U) February 6, 2024 Supreme Court, New York County Docket Number: Index No. 153586/2023 Judge: Lisa S. Headley.

The Court found that there was no support for the legal malpractice claim.

“In the motion, the defendant argues, inter alia, that the plaintiff has failed to state a claim for legal malpractice since the plaintiff must assert that her attorney’s conduct “fell below the ordinary and reasonable skill and knowledge commonly possessed by a member of the profession.” Defendant argues the plaintiff failed to state that the defendant’s conduct breached the standard of care for attorneys because the plaintiff claims that the defendant “failed to gather new facts on appeal, which cannot serve as a basis for an appeal.” According to the Retainer Agreement, the defendant would render services in connection with an appeal of the Eastern District matter to the Second Circuit, wherein defendant filed a notice of appearance and initiated an appeal to the
Second Circuit. On July 14, 2020, the United States Court of Appeals for the Second Circuit denied the plaintiff’s petition for an appeal. (See, NYSCEF Doc. No. 26). Defendant further contends that during their legal representation of plaintiff, defendant did not make any promises of a result, or an outcome of the appeal.”

“Here, the Court finds that dismissal is warranted because plaintiff’s Complaint fails to state a cognizable cause of action for professional malpractice and breach of contract. As it pertains to the legal malpractice claim, “[d]ecisions regarding the evidentiary support for a motion or the legal theory of a case are commonly strategic decisions and a client’s disagreement with its attorney’s strategy does not support a malpractice claim, even if the strategy had its flaws.” Brookwood Companies, Inc. v. Alston & Bird LLP, 146 A.D.3d 662 (1st Dep’t 2017). In order to survive dismissal, the complaint must show that “but for counsel’s alleged malpractice, the plaintiff would not have sustained some actual ascertainable damages.” Franklin v. Winard, 199 A.D.2d 220 (1st Dep’t 1993 [internal citations omitted]. In addition, “it must be established that the attorney failed
to exercise that degree of care, skill, and diligence commonly possessed and exercised by a member of the legal community. It must also be established that the attorney’s negligence was a proximate cause of the loss sustained, and that the plaintiff incurred damages as a direct result of the attorney’s actions.” Hwang v. Bierman, 206 A.D.2d 360 (2d Dep’t 1994) [internal citations comitted]. “[W]hen a frustrated litigant complained of counsel’s omissions,’[p]laintiff’s remedy relies on prima facie proof that she would have succeeded’[.]” Pellegrino v. File, 291 A.D.2d 60, 63 (1st Dep’t 2002).

Here, this Court finds plaintiff’s arguments do not prevail, and even if the defendant
executed a different strategy, and whether the defendant had submitted certain documents, facts, or allegations at the time of the appeal, that would not have rendered plaintiff a more favorable outcome on her appeal. The plaintiff’s grievances or disappointment in the outcome of her appeal handled by the defendant does not constitute legal malpractice.”