| Bixby v Somerville |
| 2009 NY Slip Op 03821 [62 AD3d 1137] |
| May 14, 2009 |
| Appellate Division, Third Department |
| Robert H. Bixby et al., Doing Business as Bixby, Crable &Stiglmeier, et al., Respondents, v Theodore E. Somerville,Appellant. |
—[*1] Corrigan, McCoy & Bush, P.L.L.C., Rensselaer (Scott W. Bush of counsel), forrespondents.
Spain, J. Appeal from an order of the Supreme Court (O'Connor, J.), entered February 7,2008 in Albany County, which granted plaintiffs' motion for summary judgment dismissingdefendant's counterclaims.
Plaintiffs represented defendant in child custody and support proceedings in Family Courtand in a matrimonial action in Supreme Court during the period of October 2000 throughOctober 2001 in which defendant sought sole custody of his infant daughter. After a full hearing,Family Court awarded defendant and the mother a shared custody arrangement and, on appeal,this Court modified that award to joint custody (Matter of Somerville v Somerville, 307AD2d 481 [2003]). Prior to final resolution of those matters, defendant reported that he wasdissatisfied with plaintiffs' services and stopped paying their legal fees. Plaintiffs commencedthis action seeking to collect unpaid counsel fees and defendant answered and raised threecounterclaims sounding in legal malpractice. After plaintiffs were granted permission to berelieved of their duties as defendant's counsel in each respective court, defendant proceeded prose in Family Court and was represented by new counsel in Supreme Court. Ultimately, after atrial de novo in Supreme Court, sole custody of the child was awarded to the mother anddefendant was ordered to pay $19,631.06 annually in child support (Somerville v Somerville, 26 AD3d647 [2006], lv dismissed and denied 7 NY3d 859 [2006]).[*2]
In his counterclaims, defendant sought the return of thelegal fees paid to plaintiffs, damages related to his child support obligation attributable to his notbeing awarded sole custody, and damages on behalf of his daughter. Supreme Court grantedplaintiffs' motion for summary judgment dismissing the counterclaims. Defendant now appeals,and we affirm.
"To sustain a cause of action for legal malpractice . . . a party must show thatan attorney failed to exercise the reasonable skill and knowledge commonly possessed by amember of the legal profession" (Arnav Indus., Inc. Retirement Trust v Brown, Raysman,Millstein, Felder & Steiner, 96 NY2d 300, 303-304 [2001] [citation omitted]). Defendantmust demonstrate that plaintiffs were negligent in their representation, that their negligence wasthe proximate cause of his loss and that he sustained actual and ascertainable damages (seeEhlinger v Ruberti, Girvin & Ferlazzo, 304 AD2d 925, 926 [2003]). Plaintiffs are entitled tosummary judgment dismissing defendant's counterclaims if they can establish that defendantcannot prove at least one of these elements (see Tabner v Drake, 9 AD3d 606, 609 [2004]). To establishproximate cause, a client such as defendant must show that he or she "would have succeeded onthe merits of the underlying action but for the attorney's negligence" (Davis v Klein, 88NY2d 1008, 1009-1010 [1996]; seeBrodeur v Hayes, 18 AD3d 979, 980 [2005], lv dismissed and denied 5 NY3d871 [2005]).
Here, plaintiffs cite extensive proof, including the transcript of the Family Court custodyhearing, to demonstrate that their conduct was a reasonable exercise of professional judgment. Inthe alternative, plaintiffs assert that any shortcomings in their representation did not proximatelycause defendant's alleged damages because he would not have been successful on the merits ofthe underlying proceeding. In our view, plaintiffs amply met their initial burden of establishing aprima facie case for summary judgment (see Alvarez v Prospect Hosp., 68 NY2d 320,324 [1986]).
Upon a careful review of the record, we conclude that defendant failed in his response tosustain his burden of submitting "evidentiary proof in admissible form sufficient to establish theexistence of material issues of fact which require a trial" (id.). Defendant premises hismalpractice claims, essentially, on three grounds. First, defendant asserts that plaintiffs breachedtheir duties to defendant by assigning plaintiff Carol R. Stiglmeier to represent him rather thananother member of the firm. However, defendant signed a retainer agreement with plaintiffs thatexpressly stated that plaintiffs reserved the right to assign work to any member of the firm.Additionally, given that defendant regularly paid the firm for more than a year after the retaineragreement was executed, while Stiglmeier continued to represent him, we agree with SupremeCourt that, by his conduct, defendant waived any objection to the firm's assignment of Stiglmeierto his case.
Second, defendant challenges some strategic choices and cites alleged missteps by plaintiffsduring the course of their representation. However, the record of the Family Court custodyproceeding reveals that Stiglmeier's advocacy "did not fall below the ordinary and reasonableskill and knowledge commonly possessed by a member of the profession" (Holmberg,Galbraith, Holmberg Orkin & Bennett v Koury, 176 AD2d 1045, 1047 [1991]); indeed,Stiglmeier assertively placed a cogent theory before the court and, with few exceptions, properand timely objections were made, and appropriate and relevant questions were asked on directand cross-examination. Generally, where allegations involve errors in the exercise of anattorney's professional judgment in areas such as strategy, the selection of appropriate evidenceor argument, they are not actionable as malpractice (see Rosner v Paley, 65 NY2d 736,738 [*3][1985]; Walter D. Peek, Inc. v Agee, 235 AD2d790, 791-792 [1997], lv denied 89 NY2d 815 [1997]; Lewis v Desmond, 187AD2d 797, 798-799 [1992]). Finally, even though plaintiffs' performance may have beenimperfect, defendant has not demonstrated that he would have been successful on the merits ofthe underlying proceeding but for that performance (see Brodeur v Hayes, 18 AD3d at980), and there is nothing in this record, such as a family law expert's opinion, to show thatdefendant's failed quest for sole custody was caused by inadequate representation. "Merespeculation about a loss resulting from an attorney's poor performance is insufficient to sustain aprima facie case of legal malpractice" (Antokol & Coffin v Myers, 30 AD3d 843, 845 [2006] [citationomitted]). It is significant that, after defendant's second opportunity—with a newattorney—to prove his entitlement to sole custody, Supreme Court denied him that reliefand also negated Family Court's joint custody determination, instead granting the mother fullcustody.
Third, defendant points to the advice or guidance he was given with regard to his preparationof a financial disclosure affidavit (hereinafter FDA), the veracity of which was later questionedby Family Court. Even if, for the sake of argument, Stiglmeier negligently approved a FDAwhich misstated some of defendant's income information, the record contains no evidence toestablish that defendant would have prevailed, but for the inaccurate FDA, on the issues of childsupport and custody (see Davis v Klein, 88 NY2d 1008, 1009-1010 [1996]; Amodeo v Gellert & Quartararo, P.C.,26 AD3d 705, 707 [2006]). The record before us supports the conclusion that defendant wasnot penalized for any misstatements regarding his income. Clearly, there is no evidence ofcausation.[FN*]
Defendant's malpractice claim asserted on behalf of his daughter was also properly dismissedfor reasons stated above. Moreover, no privity exists between plaintiffs and defendant's daughter(see C.K. Indus. Corp. v C.M. Indus. Corp., 213 AD2d 846, 847 [1995]). Plaintiffsrepresented defendant only; his daughter was represented in Family Court by a separate attorneyassigned by the court and she is not a named party in this action.
Thus, Supreme Court properly dismissed defendant's counterclaims, and his remainingcontentions lack merit.
Mercure, J.P., Kavanagh and McCarthy, JJ., concur. Ordered that the order is affirmed,without costs.
Footnote *: To the extent that defendant isalleging claims based on breach of fiduciary duties, they are, essentially, a recasting of his legalmalpractice claims and were properly dismissed on the same grounds (see Adamski v Lama, 56 AD3d1071, 1072-1073 [2008]; Guiles vSimser, 35 AD3d 1054, 1055 [2006]).