Uninsured Motorist’s Coverage is insurance that one buys for the instance in which the other driver is uninsured or underinsured.  Before that coverage, which has already been paid for, is triggered, several things must take place.  One is that the entire policy payout of the other driver must be obtained and the second is that your carrier must consent to the settlement.  What happens if one of the two conditions precedent doesn’t happen? 

We see one such situation in Benjamin v Allstate Ins. Co., 2013 NY Slip Op 31248(U) June 10, 2013 Supreme Court, Suffolk County Docket Number: 11-37345 Judge: W. Gerard Asher. 

"This action was commenced to recover damages allegedly sustained by the plaintiff as the result
of the actions of the defendants The Odierno Law Firm, PC and Joseph J. Odierno (Odierno) in failing to timely pay her the proceeds of the settlement of a personal injury action commenced on her behalf, failing to timely notify her of its failure to timely notify her insurance carrier of the potential of her potential “SUM” claim, and for their violation of Judiciary Law 487. The amended complaint in this action sets forth three causes of action. The first cause of action against the defendant Allstate Insurance Company (Allstate) seeks a declaration that she is entitled to supplementary underinsured motorist (SUM) benefits pursuant to her policy of insurance with Allstate. The second and third causes of action against Odierno sound in legal malpractice and violations of Judiciary Law 5 487."

"It is undisputed that plaintiff was involved in a motor vehicle accident on May 7,2004, and that
Odierno was retained by the plaintiff to prosecute an action against both the owner and the operator of the other vehicle (the underlying action). It is also undisputed that Odierno settled the underlying action on or about May 17, 2007. A review of the documentary evidence reveals that Odierno received the settlement check from the defendants’ insurance carrier on or about June 26,2007, and that he filed a closing statement pursuant to 22 NYCRR 691.20 on or about September 14,2007. However, Odierno did not disburse the amount due to his client immediately. Instead, he paid out $6,000 to the plaintiff on March I I, 2008, and the balance due her on October 18, 2008."

"To the extent that the plaintiffs second cause of action can be read to assert that Odierno’s delay
in paying out the subject settlement proceeds to the plaintiff constituted legal malpractice, the action accrued no later than October 18, 2008. In a letter that date, Odierno transmitted the balance of the settlement proceeds to the plaintiff stating “Thank you for the privilege of selecting my office to represent you in this matter. If I can be of service to you in the future, do not hesitate to contact me.” An action to recover damages for legal malpractice must be commenced within three years from accrual (CPLR 214 (6); see McCoy v Feinman, 99 NY2d 295,755 N.Y.S.2d 693 [2002]; Rupolo v Fish, 87 AD3d 684,928 NYS2d 596 [2d Dept 201 13; Williams v Lindenberg, 24 AD3d 434,805 NYS2d 132 [2d Dept 20051). A legal malpractice claim accrues when the malpractice is committed, not when it is discovered (McCoy v Feinman, supra; Shumsky v Eisenstein, 96 NY2d 164,726 NYS2d 365 [2001]; St. Stephens Baptist Church, Inc. v Salzman, 37 AD3d 589, 830 NYS2d 248 [2d Dept 20071; Shivers v. Siegel, 11 AD3d 447,782 NYS2d 752 [2d Dept 20041; Venturella-Ferretti v Kinzler, 306 AD2d 465, 762 NYS2d 254 [2d Dept 20031). In addition, a client’s ignorance of the alleged wrong or injury has no impact upon when the cause of action accrues (see McCoy v Feinman, supra; Alicanti v Bianco, 2 AD3d 373,767 NYS2d 815 [2d Dept 20031; King v Albany County Pub. Defender’s OfJ:2,55 AD2d 770, 680 NYS2d 289 [3d Dept 19981). Here, Odierno has established that this action was commenced on December 7,2011, more than three years after the second cause of action accrued on September 14, 2007 or, in any event, no later than October 18,2008.’"

Question:  How does plaintiff prove that it was negligence to settle for $ 21,500 rather than $ 25,000 and that the other driver would have paid $ 25,000 if the attorney were not negligent?

Two lessons for legal malpractice practitioners and, upon consideration, for all attorneys can be found in Wild v Catholic Health Says. 2013 NY Slip Op 04043   Decided on June 6, 2013  Court of Appeals.  The first lesson is straightforward.  One must preserve objections in order to appeal from the resulting order.  Here,  "On appeal, defendants contend that the trial court improperly instructed the jury on the loss-of-chance theory of liability because New York State has not yet adopted this theory, and the charge relaxed the plaintiffs’ burden of proof [FAN1]. Defendants base their argument on the following jury charge language:
"The negligence of any of the defendants may be considered a cause of the injuries to [decedent] if you find the defendant[s’] actions or omissions deprived [decedent] of a substantial possibility of avoiding the consequences of having a permanent feeding tube. The chance of avoiding a need for a permanent feeding tube to be substantial, does not have to be more likely than not and it does not have to be more than 50 percent, but it has to be more than slight." [*3]
 

In response, plaintiffs argue that defendants’ challenge based on the viability of a loss-of-chance theory of liability under New York law is unreserved, and that regardless, the jury charge was proper.

As a threshold matter we agree that the defendants’ challenge to the viability of the loss-of-chance theory as articulated on appeal is unreserved. The record indicates that defendants did not present the trial court with a direct challenge to the underlying theory of negligence propounded during the trial and eventually charged to the jury. Instead, counsel challenged the jury charge on the ground that the "facts of this case" do not support a loss-of-chance charge, not that such charge is wholly unavailable under New York law. Thus, the concern raised with the trial court was that plaintiffs had failed to present a factual basis for the charge, not that as a legal matter, regardless of the evidence, such a charge was prohibited under New York law. Moreover, defendants’ challenge was asserted as part of counsel’s request for adherence to the PI because, counsel argued, the proposed language deviated from the PI in a way that changed the burden of proof. Thus, the sum and substance of defendants’ argument before the trial judge was that plaintiff failed to present evidence in support of the charge which sought to instruct the jury on a negligence theory of loss-of-chance, and that the jury charge erroneously reduced the plaintiffs’ burden of proof and relaxed the standard for causation."

The Second lesson is on the question of whether a "loss-of-chance" claim might be available for legal malpractice cases.  "The loss-of-chance theory, in certain jurisdictions, "’grant[s] recovery to patients for deprivation of the opportunity of more beneficial treatment and the resulting gain in life expectancy or comfort, although the evidence fails to establish a reasonable probability that without defendant’s negligence a cure was achievable’" (Hill v Novelties Pharmaceuticals Corp. _ F Supp 2d _ [ED NY 2013], quoting Williams v Recall, 33 Cal App4Th 120, 134 [1995]). "

Might not the same theory, that a plaintiff was deprived of the opportunity of a more beneficial outcome to the litigation be available to legal malpractice cases?

On occasion, the bitterness and melancholy aspects of a case are cognizable merely from reading a motion decision.  In Bloomgarden v Lanza  2013 NY Slip Op 31221(U)  June 5, 2013
Supr Ct, Suffolk County  Docket Number: 8587-12  Judge: Daniel Martin  two parents, both doctors, sue California attorneys over representation of their son, convicted of crimes and facing death penalty proceedings in California.  Is there jurisdiction over the attorneys in NY? 

The short answer is no.  The longer answer is found in an analysis of the NY long-arm jurisdiction law.  "Plaintiffs commenced this action seeking to recover damages for legal malpractice [any other claims] which allegedly resulted from the defendants’ representation of plaintiffs and their son, Howard Bloomgarden, in a suit against another attorney in the State of Florida relating to her retention by the plaintiffs to handle two matters relating to Howard Bloomgarden’s plea/conviction on various criminal counts and the return of fees paid.  The Florida action, under the title: BLOOMGARDEN v. ROBERTA MANDEL, et al, sought to recover from the attorney for breach of contract [and other claims], all concerning Ms. Mandel’s efforts to relieve Howard Bloomgarden of the consequences of a federal criminal court plea allocution, based on lack of effective counsel by yet another attorney, for which he was, and is, serving 33 and 3/4 years sentence and upon which he potentially would fact two capital murder prosecutions in the State of California."

After a long [and not reproducible discussion] of the NY  long arm statute , CPLR 302, the court decides that there is insufficient nexus to New York.  In fact, other than the residence of the plaintiffs, and the fact that a contract was mailed into NY, there is no connection at all. Supreme Court decides that it is without personal jurisdiction over the defendants, and dismisses.

This clearly written Court of Appeals case lays out the Insurance carrier’s obligation to defend legal malpractice cases, and what happens when they refuse to defend.  K2 Inv. Group, LLC v American Guar. & Liab. Ins. Co. ,2013 NY Slip Op 04270 , Decided on June 11, 2013  Court of Appeals, Smith, J. tells us that when the carrier wrongfully fails to defend, it cannot then litigate other policy exclusions, and can (but not in this case) be responsible for bad faith amounts in excess of the policy.
 

"We affirm the summary judgment in plaintiffs’ favor on the breach of contract claims without reaching the question that divided the Appellate Division: the applicability of the insured’s status exclusion and the business enterprise exclusion to American Guarantee’s duty to indemnify Daniels for a judgment based on legal malpractice. We hold that, by breaching its duty to defend Daniels, American Guarantee lost its right to rely on these exclusions in litigation over its indemnity obligation.

It is quite clear that American Guarantee breached its duty to defend — indeed, it does not seem to contend otherwise now. We summarized the law applicable to this issue in Automobile Ins. Co. of Hartford v Cook (7 NY3d 131, 137 [2006]):

"It is well settled that an insurance company’s duty to defend is broader than its duty to indemnify. Indeed, the duty to defend is exceedingly broad and an insurer will be called upon to provide a defense whenever the allegations of the complaint suggest a reasonable possibility of coverage. If, liberally construed, the claim is within the embrace of the policy, the insurer must come forward to defend its insured no matter how groundless, [*4]false or baseless the suit may be.
"The duty remains even though facts outside the four corners of the pleadings indicate that the claim may be meritless or not covered . . . . Thus, an insurer may be required to defend under the contract even though it may not be required to pay once the litigation has run its course.""
 

"Here, the complaint in the underlying lawsuit against Daniels unmistakably pleads a claim for legal malpractice. American Guarantee no doubt had reason to be skeptical of the claim; it is unusual, in a loan transaction, for lenders to retain a principal of the borrower to act as their lawyer, as plaintiffs here claimed they did. But that means only that the claim against Daniels may have been "groundless, false or baseless . . . meritless or not covered" — it does not allow American Guarantee to escape its duty to defend. It would be different if the claim were collusive, but American Guarantee has neither claimed that plaintiffs and Daniels were colluding against it nor alleged any facts to support such a claim.

It is also well established that, when an insurer has breached its duty to defend and is called upon to indemnify its insured for a judgment entered against it, the insurer may not assert in its defense grounds that would have defeated the underlying claim against the insured (Lang v Hanover Ins. Co., 3 NY3d 350, 356 [2004]). As the court said in Mendoza v Schlossman (87 AD2d 606, 607 [2d Dept 1982]):

"A default judgment on the issue of liability in a legal malpractice action disposes of the issue of the lawyer’s negligence and the validity of the underlying claim."
The rule as we have just stated it does not dispose of the present case, because American Guarantee is not relying on defenses that would have shielded Daniels from malpractice liability; it is relying on exclusions in its insurance contract with Daniels. In Lang, however, we stated the rule more broadly:

"[A]n insurance company that disclaims in a situation where coverage may be arguable is well advised to seek a declaratory judgment concerning the duty to defend or indemnify the purported insured. If it disclaims and declines to defend in the underlying [*5]lawsuit without doing so, it takes the risk that the injured party will obtain a judgment against the purported insured and then seek payment . . . Under those circumstances, having chosen not to participate in the underlying lawsuit, the insurance carrier may litigate only the validity of its disclaimer and cannot challenge the liability or damages determination underlying the judgment."

The Adult Use industry was the subject of constitutional litigation in the City of New York, and was essentially limited to certain non-residential corridors.  In DeWitt, New Yorkits use is also limited.  What happens when an operator hires a law firm to help set up an adult use industry, and finds that the warehouse and buildings cannot be used for that purpose?

Hotaling v Sprock  2013 NY Slip Op 04170  Released on June 7, 2013  Appellate Division, Fourth Department  is just such a situation.  "Plaintiff commenced this legal malpractice action seeking damages for the alleged negligence of defendants in failing to determine that a Town of Dewitt zoning ordinance prohibited him from operating an "adult use" business in the building he purchased for that purpose. Zonen, Ltd. (Zonen), the corporation formed by plaintiff to operate the business, has operated a retail establishment in the building, which includes "adult use" inventory, since 2001. Supreme Court granted defendants’ motion for summary judgment dismissing the third amended complaint on the ground that plaintiff failed to raise an issue of fact whether he sustained actual and ascertainable damages, an
" essential element[] of [a] legal malpractice cause of action’ " (Malachowski v Daly, 87 AD3d 1321, 1321; see generally Dombrowski v Bulson, 19 NY3d 347, 350). "

"Nevertheless, viewing the submissions of the parties in the light most favorable to plaintiff, as we must (see Victor Temporary Servs. v Slattery, 105 AD2d 1115, 1117), we conclude that the court erred in determining that plaintiff failed to raise an issue of fact whether he has sustained damages for loss of rent (cf. Malachowski, 87 AD3d at 1323). We therefore modify the judgment accordingly. Plaintiff alleges in the third amended complaint, as amplified by his response to defendants’ interrogatories, that he is unable to lease a portion of the property to Zonen or any other entity because defendants failed to advise him of zoning ordinances governing parking restrictions. Plaintiff also averred in his affidavit in opposition to the motion that his efforts to lease the warehouse were prohibited by the Town of Dewitt inasmuch as the property lacks the required number of parking spaces. Moreover, in response to defendants’ interrogatories, plaintiff submitted documentary evidence establishing that he has been damaged by the loss of rent for 2,500 feet at a rate of $3.50 per square foot. "

From what we can decipher in this decision, an insured car owner was convinced that it had to pay $200,000 from its personal assets in settlement of a case, and that the insurance company was allowed not to pay.  Plaintiff alleges that this happened because of deceit. 

In Duszynski v Allstate Ins. Co.   2013 NY Slip Op 04172   Released on June 7, 2013  Appellate Division, Fourth Department plaintiff moves to amend the complaint. 
 

"James Lambert (Lambert) struck a pedestrian while operating a vehicle owned by his mother, Ruby Lambert (decedent). The pedestrian commenced a personal injury action against decedent and Lambert, both of whom were insured by defendant Allstate Insurance Company (Allstate). Defendants Paul E. Richardson and The Law Offices of Mary A. Bjork (Bjork) were assigned by Allstate to defend decedent and Lambert in the personal injury action. As part of the settlement of that action, decedent agreed to pay approximately $200,000 from her personal assets. Before that payment could be made, however, decedent passed away. Pursuant to an order of Surrogate’s Court, decedent’s estate paid that amount to the personal injury plaintiff in full and final settlement of the action as against decedent.

Plaintiff, as administratrix of decedent’s estate, thereafter commenced the instant action alleging, inter alia, that Richardson and Bjork were negligent and committed legal malpractice while handling the defense of the personal injury action. Sixteen months later, plaintiff moved for leave to amend the complaint to add a cause of action under Judiciary Law § 487. Supreme Court granted that motion, and we now affirm. "

""A violation of Judiciary Law § 487 may be established either by the defendant’s alleged deceit or by an alleged chronic, extreme pattern of legal delinquency by the defendant" (Scarborough v Napoli, Kaiser & Bern, LLP, 63 AD3d 1531, 1533 [internal quotation marks omitted]; cf. Donaldson v Bottar, 275 AD2d 897, 898, lv dismissed 95 NY2d 959; see generally Amalfitano v Rosenberg, 12 NY3d 8, 12-14). With respect to the element of deceit, "[t]he operative language at issue— guilty of any deceit’—focuses on the attorney’s intent to deceive, not the deceit’s success" (Amalfitano, 12 NY3d at 14). Here, in addition to alleging that Richardson "intentionally deceived . . . Lambert when Richardson falsely stated to . . . Lambert that [the personal injury plaintiff] was intent on settling the matter for the combined policy limits," plaintiff alleges that "Bjork/Richardson intentionally deceived [decedent] and . . . Lambert in representing to them that the [personal injury action] had been settled within policy limits and that neither [Lambert’s] nor [decedent’s] personal assets would be exposed." Inasmuch as plaintiff alleges that the attorneys "engaged in intentional deceit" (Scarborough, 63 AD3d at 1533), we conclude that plaintiff has alleged sufficient facts to state a cause of action under Judiciary Law § 487.

Defendants further contend that plaintiff’s motion should have been denied inasmuch as no damages resulted from the alleged misconduct. In her proposed amended complaint, plaintiff alleges that, as a result of defendants’ violation of section 487, decedent was damaged. On this record, we cannot conclude that plaintiff’s allegation of damages is patently lacking in merit (cf. Manna v Ades, 237 AD2d 264, 265, lv denied 90 NY2d 806; Michalic v Klat, 128 AD2d 505, 506). In any event, " the decision whether to grant leave to amend a complaint is committed to the sound discretion of the court’ " (Carro v Lyons Falls Pulp & Papers, Inc., 56 AD3d 1276, 1277), and we see no basis to disturb the court’s decision here. "

Client retains attorney, and reaches settlement of an underlying workers’ compensation case.  He later sues attorney for legal malpractice.  May he?

The short answer is yes, a client may sue his attorney after a settlement, if "’if it is alleged that [the] settlement . . . was effectively compelled by the mistakes of counsel’" (Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083 [2005], lv denied 6 NY3d 701 [2005].

The longer answer is seen in Marchell v Littman 2013 NY Slip Op 04068  Decided on June 6, 2013  Appellate Division, Third Department.   "Even assuming that defendant was negligent because he was unfamiliar with the Board’s apportionment doctrine (see e.g. Matter of Nye v IBM Corp., 2 AD3d 1164, 1164 [2003]; Matter of Krebs v Town of Ithaca, 293 AD2d 883, 883-884 [2002], lv denied 100 NY2d 501 [2003]), he could nevertheless succeed on his motion for summary judgment by demonstrating that his negligence was not a proximate cause of any actual and ascertainable damages to plaintiff (see Geraci v Munnelly, 85 AD3d 1361, 1362 [2011]; Bixby v Somerville, 62 AD3d 1137, 1139 [2009]; Tabner v Drake, 9 AD3d 606, 609 [2004]). In the context of the compromise reached in settlement of plaintiff’s workers’ compensation claim, a legal malpractice cause of action would be viable "’if it is alleged that [the] settlement . . . was effectively compelled by the mistakes of counsel’" (Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082, 1083 [2005], lv denied 6 NY3d 701 [2005], quoting Bernstein v Oppenheim & Co., 160 AD2d 428, 430 [1990]; see Rau v Borenkoff, 262 AD2d 388, 389 [1999]).

Here, SIF’s representative testified that, even with apportionment, he felt that he had given "too much" to plaintiff and that the negotiations had resulted in a "bad deal" for SIF. He also testified that an agreement that failed to include apportionment would have been "the ultimate victory for [plaintiff]." In short, there is no evidence to support plaintiff’s contention that the carrier would have agreed to the settlement without apportioning the claim. Rather, the record supports the contrary conclusion that it was to SIF’s advantage to seek a settlement that apportioned its liability.

Nor is there any evidence that defendant could have litigated a more favorable result for plaintiff (see Sevey v Friedlander, 83 AD3d 1226, 1227 [2011], lv denied 17 NY3d 707 [2011]; Mega Group, Inc. v Pechenik & Curro, P.C., 32 AD3d 584, 586-587 [2006]). In determining whether plaintiff was entitled to continued benefits, the Board would have been confronted with differing medical opinions and would have been free to credit the opinion that plaintiff was no longer disabled as a result of the work-related injury (see e.g. Matter of Altobelli v Allinger Temporary Servs., Inc., 70 AD3d 1083, 1084 [2010]; Matter of Moore v St. Peter’s Hosp., 18 AD3d 1001, 1002 [2005]). Had the Board accepted the opinion of plaintiff’s treating orthopedist, plaintiff would have been entitled only to a lump-sum payment for his work-related injury, and would not be receiving the continuing benefits provided by the settlement.

We cannot agree with plaintiff’s argument, based on Matter of Sidaris v Brookhaven Mem. Hosp. (271 AD2d 884 [2000]), that he would have been entitled to continuing benefits after a hearing even if the treating orthopedist’s opinion was accepted. The claimant in Sidaris received benefits based on an accident that aggravated his preexisting condition (id. at 884). Here, plaintiff’s treating orthopedist opined that his work-related injury was fully resolved and had no impact on his preexisting condition, which he described as naturally progressing. Accordingly, the damages alleged by plaintiff are speculative and Supreme Court properly granted defendant’s motion for summary judgment dismissing the complaint (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 443 [2007]; Sevey v Friedlander, 83 AD3d at 1227; Country Club Partners, LLC v Goldman, 79 AD3d 1389, 1392 [2010]). "

Judgment calls are exempt from legal malpractice consideration.  Put another way, an attorney may not be held for legal malpractice on the basis of a reasonable trial strategy even when unsuccessful.  But, what is a trial strategy and what is a departure from good standards?  Often the difference is in the eye of the beholder, or in a slightly more objective sense, when it is reasonable.  Today, we use a criminal case, in a different setting.  Here, the question is whether there was ineffective assistance of counsel. 

In People v Oliveras  2013 NY Slip Op 04040  Decided on June 6, 2013  Court of Appeals
Rivera, J. the question of trial strategy v. ineffective assistance concerned the mental status of the defendant and whether the attorney reasonably refused to seek his psychiatric records.   
 

"After several requests to review the evidence and for a clarification on Miranda, the jury found defendant guilty of murder in the second degree. The court sentenced him to 25 years to life.
D. Defendant’s Motion to Vacate the Conviction

Defendant obtained new counsel who moved to vacate the conviction pursuant to CPL 440.10, arguing that defendant’s trial counsel was ineffective based on several enumerated failures and errors. The motion raised trial counsel’s failure to provide timely notice pursuant to CPL 250.10, to present evidence of defendant’s psychiatric history, to obtain defendant’s psychiatric records, to consult an expert to explain the relationship between defendant’s psychiatric history and the voluntariness and reliability of his statements, and trial counsel’s ignorance of the law regarding the CPL 250.10 notice.

At the hearing, trial counsel testified about his representation of defendant, and explained his decision to not obtain defendant’s records. He stated that while he initially intended to obtain defendant’s psychiatric records to show that defendant’s inculpatory statements were involuntary, he did not pursue this approach because of defendant’s objections. He testified that defendant said he was innocent, and "shut [him] down" from pursuing a psychiatric defense. According to trial counsel, defendant "did not want to be portrayed as someone suffering from a [*5]psychiatric mental illness." He said he believed that defendant did not want to "end up in a mental institution." He further stated that it was his understanding that defendant "didn’t want psychiatric mumbo jumbo, whatever you want to call it, because he felt it would paint him in a bad way."

Trial counsel explained that he then decided to present defendant’s mental capacity without the records and as a result decided to forgo obtaining them. Trial counsel claimed that he "stood to gain nothing by getting those records . . . unless [he] was headed towards [putting on] a psychiatric defense." Counsel further claimed: "And my feeling is and has been, and I’ve done it in many cases, is that you’re better off . . . without having so many experts on the witness stand and getting bogged up in that, and just giving the jury a good gut feeling." Thus, trial counsel sought to secure his client’s acquittal by demonstrating to the jury that his client was "not playing with a full deck" and arguing on summation that the police took advantage of him.

Trial counsel said he intended to convince the jury that defendant’s will was overborne by the police due to his mental history and the affects of the interrogation. According to trial counsel, he wanted to "build" this idea "in the minds of the jury" by demonstrating that defendant "had no work history," "was on SSI," "had a grade school education at the most," "was in special ed," "had some hospitalizations," and was someone "whose mind could be played with." Trial counsel sought to have this history introduced by defendant’s mother, who would discuss her son’s educational, institutional, and occupational history.

At the hearing, trial counsel admitted that he developed this defense approach without the full benefit of defendant’s psychiatric and government records. He stated that he never saw defendant’s psychiatric records or Social Security Administration records, and that he did not know the diagnosis contained in those records. Trial counsel also admitted that he did not get the records because he believed that he would have to turn them over to the People, even if he never introduced them at trial or presented a formal psychiatric defense.
"And you know, yes, the strategy was born in the blind without those [records], but I felt that number one, if I have the records, I got to turn them over. Number two, I don’t gain anything by having those records. The fact that he was — his history is what it was should have been good enough."

This is not simply a case of a failed trial strategy(see Baldi, 54 NY2d at 146 ["trial tactics which terminate unsuccessfully do not automatically indicate ineffectiveness"]). [*8]Rather, this is a case of a lawyer’s failure to pursue the minimal investigation required under the circumstances. Given that the People’s case rested almost entirely on defendant’s inculpatory statements, trial counsel’s ability to undermine the voluntariness of those statements was crucial. The strategy to present defendant’s mental capacity and susceptibility to police interrogation could only be fully developed after counsel’s investigation of the facts and law, which required review of records that would reveal and explain defendant’s mental illness history, and defendant’s diagnosis supporting his receipt of federal SSI benefits.

The People’s argument that the contested records would not have helped the defense, regardless of trial counsel’s choices, misconstrues the central issue in this case. The issue is not whether trial counsel’s choice to have certain documents excluded from the record constitutes a legitimate trial strategy, but whether the failure to secure and review crucial documents, that would have undeniably provided valuable information to assist counsel in developing a strategy during the pre-trial investigation phase of a criminal case, constitutes meaningful representation as a matter of law. The utter failure to obtain these documents constituted denial of effective assistance. "