| Cinao v Reers |
| 2013 NY Slip Op 05791 [109 AD3d 781] |
| September 11, 2013 |
| Appellate Division, Second Department |
| Frederick Cinao, Appellant, v Richard L. Reers,Respondent. |
—[*1] Furman Kornfeld & Brennan LLP, New York, N.Y. (A. Michael Furman ofcounsel), for respondent.
In an action, inter alia, to recover damages for legal malpractice, the plaintiff appealsfrom an order of the Supreme Court, Kings County (Spodek, J.), dated December 15,2011, which denied his motion pursuant to CPLR 4404 (a) to set aside a jury verdict infavor of the defendant and for a new trial.
Ordered that the order is affirmed, with costs.
The plaintiff, who served for a time as the trustee of a trust that had been establishedby his mother in Hawaii, the situs of the trust, commenced this legal malpractice actionalleging that the defendant, among other things, failed to properly advise him regardingthe proper and timely distribution of the trust assets. The plaintiff averred that as a result,he had been removed as the trustee of the trust and had incurred damages in the form oflost commissions and interest he was directed to pay to his brother due to an untimelydistribution.
Following trial, the jury returned a unanimous verdict in favor of the defendant,concluding that he did not depart from the exercise of that degree of care, skill, anddiligence commonly possessed and exercised by a member of the legal community.Thereafter, the plaintiff moved pursuant to CPLR 4404 (a) to set aside the jury verdict ascontrary to the weight of evidence or in the interest of justice, and for a new trial. TheSupreme Court denied the plaintiff's motion.
A jury verdict should not be set aside as contrary to the weight of the evidence unlessthe jury could not have reached the verdict by any fair interpretation of the evidence(see Lolik v Big V Supermarkets, 86 NY2d 744 [1995]; Cohen v HallmarkCards, 45 NY2d 493 [1978]; Nicastro v Park, 113 AD2d 129 [1985])."When a verdict can be reconciled with a reasonable view of the evidence, the successfulparty is entitled to the presumption that the jury adopted that view" (Handwerker vDominick L. Cervi, Inc., 57 AD3d 615, 616 [2008]; see Johnson v Yue Yu Chen,104 AD3d 915, 915 [2013]; Liounis v New York City Tr. Auth., 92 AD3d 643, 644[2012]). The jury's determination of witness credibility is entitled to great deference, as ithad the opportunity to see and hear the witnesses (see Salony v Mastellone, 72 AD3d 1060, 1061 [2010]; Filipowich v Tavano, 23AD3d 519 [2005]).
Here, the evidence supports the jury's finding that the defendant did not "depart[ ]from the exercise of that degree of care, skill, and diligence commonly possessed andexercised by a member of the legal community" (Edwards v Haas, Greenstein,Samson, Cohen & Gerstein, P.C., [*2]17 AD3d 517,519 [2005]). The jury properly credited evidence which established, among other things,that the defendant marshaled the trust assets, communicated with the attorneysrepresenting the plaintiff's brother in an attempt to settle the brothers' dispute over thetrust, advised the plaintiff to retain local counsel in Hawaii, and successfully sought toadjourn the proceedings several times to give the plaintiff sufficient opportunity to retainlocal counsel. The plaintiff admitted that he made no attempt to retain local counsel tooppose his brother's petition to remove him as sole trustee. In addition, it is undisputedthat when the plaintiff retained the defendant in April 2000, the plaintiff had alreadybreached the terms of the trust which required him to distribute $158,000 to his brotherwithin six months of their mother's death, and that prior to retaining the defendant, theplaintiff, as the sole trustee, had not taken any steps to administer the trust. Thus, the juryproperly concluded that the plaintiff's inaction as sole trustee led to the untimelydistributions, as well as his removal as sole trustee, and that the defendant did not departfrom the exercise of that degree of care, skill, and diligence commonly possessed andexercised by a member of the legal community in attempting to resolve the brothers'dispute and administer the trust. Accordingly, contrary to the plaintiff's contention, theverdict was supported by a fair interpretation of the evidence (see Lolik v Big VSupermarkets, 86 NY2d at 746).
Additionally, under the circumstances, the trial court providently exercised itsdiscretion in precluding the plaintiff from presenting the testimony of his brother'sformer attorney (see generallyGurgenidze v Vitale, 44 AD3d 900 [2007]; Burich v Pomerantz, 41 AD3d 632 [2007]).
The plaintiff's remaining contentions are without merit.
Accordingly, the Supreme Court properly denied the plaintiff's motion pursuant toCPLR 4404 (a) to set aside the jury verdict and for a new trial. Eng, P.J., Balkin, Romanand Miller, JJ., concur.