| Robinson v Way |
| 2008 NY Slip Op 10148 [57 AD3d 872] |
| December 23, 2008 |
| Appellate Division, Second Department |
| Gareth Robinson et al., Respondents-Appellants, v Fred D.Way III et al., Appellants-Respondents, et al., Defendant. |
—[*1] Gregory Antollino, New York, N.Y., for respondents-appellants.
In an action to recover damages for legal malpractice, the defendants Fred D. Way III and LawOffices of Fred D. Way appeal, as limited by their brief, from a judgment of the Supreme Court, KingsCounty (Saitta, J.), dated February 26, 2007, which upon a jury verdict, and upon an order of thesame court dated February 7, 2007, denying that branch of their motion pursuant to CPLR 4404 (a)which was to set aside so much of the jury verdict as was in favor of the plaintiffs and against themawarding compensatory damages in the principal sum of $29,100 and for judgment as a matter of lawon the ground that the plaintiffs failed to establish a prima facie case of legal malpractice, or in thealternative, for a new trial on the ground that the verdict was against the weight of the evidence, andgranting that branch of their motion pursuant to CPLR 4404 (a) which was to set aside so much of thejury verdict as was in favor of the plaintiffs and against them awarding punitive damages in the principalsum of $100,000, is in favor of the plaintiffs and against them in the principal sum of $29,100, and theplaintiffs cross-appeal from the same judgment on the ground of inadequacy.
Ordered that the judgment is affirmed, without costs or disbursements.
The defendants Fred D. Way III and Law Offices of Fred D. Way (hereinafter together thedefendants) contend that the Supreme Court erred in denying that branch of their motion which was toset aside so much of the jury verdict as was in favor of the plaintiffs and against them awardingcompensatory damages in the principal sum of $29,100 and for judgment as a matter of law on the[*2]ground that the plaintiffs failed to establish a prima facie case oflegal malpractice, or in the alternative, for a new trial on the ground that the verdict was against theweight of the evidence. We disagree.
A court may grant a defendant's motion to set aside a verdict on the ground that the plaintiff failedto establish a prima facie case only if there is "no valid line of reasoning and permissible inferenceswhich could possibly lead rational [people] to the conclusion reached by the jury on the basis of theevidence at trial" (Zelaya v Breger, 43AD3d 437, 438 [2007] [internal quotation marks omitted]). Contrary to the defendants'contention, the jury could have rationally concluded, under the circumstances presented in this case,that Fred D. Way III "failed to exercise the ordinary reasonable skill and knowledge commonlypossessed" by an attorney in various respects, and that his breach of that duty proximately caused theplaintiffs to sustain actual and ascertainable damages (Carrasco v Pena & Kahn, 48 AD3d 395, 396 [2008]; see Baccash v Sayegh, 53 AD3d 636,639 [2008]). Further, the jury verdict was not against the weight of the evidence as it was supported bya fair interpretation of the evidence (see Adelman v Attonito, 304 AD2d 507 [2003]).
However, the court properly granted that branch of the defendants' motion which was to set asideso much of the jury verdict as was in favor of the plaintiffs and against them awarding punitive damagessince the plaintiffs failed to present evidence demonstrating that the defendants' "conduct was sooutrageous as to evince a high degree of moral turpitude . . . showing such wantondishonesty as to imply a criminal indifference to civil obligations" (Zarin v Reid & Priest, 184AD2d 385, 388 [1992]).
The plaintiffs' remaining contention is without merit.
The defendants' remaining contention is not properly before us as it is raised for the first time onappeal (see Albanese v Village of Freeport,52 AD3d 550, 551 [2008]). Spolzino, J.P., Carni, Eng and Leventhal, JJ., concur.