The following e-filed documents, listed by NYSCEF document numbers (Motion 001) 12, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22, 23, 25, 26, 27, 28, 29, 30, 31, and 32 were read on this motion to DISMISS (& cross-motion to amend). DECISION + ORDER ON MOTION Upon the foregoing documents, the defendants’ motion to dismiss the verified complaint is granted, and the plaintiffs’ cross-motion for leave to amend the verified complaint is denied per the following memorandum. In this legal malpractice action, Secured Worldwide, LLC (“Secured”), predecessor in interest to American Diamond Mint LLC, and its principal, plaintiff Arthur Joseph Lipton, were represented by defendants in a federal action captioned Secured Worldwide, LLC v. Kinney (No. 15 Civ. 1761, U.S. Dist. Ct., S.D.N.Y.) (the “Federal Action”). Plaintiffs herein claim that defendants committed the following acts of malpractice:1 failing to object to the consideration of evidence and testimony that was assertedly precluded under an earlier order of the court in the Federal Action; failing to question a witness regarding potential impeachment information; and failing to take an appeal of the adverse decision rendered in the Federal Action against Secured.2 Plaintiffs assert that the adverse decision was then used as the basis for a collateral estoppel finding in other action involving plaintiffs, the end-result of which led to Secured and Lipton declaring bankruptcy. “On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction” (Leon v. Martinez, 84 NY2d 83, 87 [1994]). “[The court] accept[s] the facts as alleged in the complaint as true, accord[ing] plaintiff the benefit of every possible favorable inference, and determin[ing] only whether the facts as alleged fit within any cognizable legal theory” (id. at 87-88). Ambiguous allegations must be resolved in plaintiff’s favor (JF Capital Advisors, LLC v. Lightstone Group, LLC, 25 NY3d 759, 764 [2015]). “The motion must be denied if from the pleadings’ four corners factual allegations are discerned which taken together manifest any cause of action cognizable at law” (511 West 232nd Owners Corp. v. Jennifer Realty Co., 98 NY2d 144, 152 [2002] [internal citations omitted]). “[W]here … the allegations consist of bare legal conclusions, as well as factual claims either inherently incredible or flatly contradicted by documentary evidence, they are not entitled to such consideration” (Ullmann v. Norma Kamali, Inc., 207 AD2d 691, 692 [1st Dept 1994]). As an initial matter, plaintiffs’ claim for breach of contract must be dismissed as duplicative. Both the legal malpractice claim (first cause of action) and the breach of contract claim (second cause of action) arise out of the same facts and seek the same damages (Voutsas v. Hochberg, 103 AD3d 445, 446 [1st Dept 2013]), and plaintiffs do not allege that defendants promised any particular result (Senise v. Mackasek, 227 AD2d 184, 185 [1st Dept 1996]). Turning to the malpractice claim, “[a]n action for legal malpractice requires proof of three elements: (1) that the attorney was negligent; (2) that such negligence was a proximate cause of plaintiff’s losses; and (3) proof of actual damages” (Global Bus. Inst. v. Rivkin Radler LLP, 101 AD3d 651 [1st Dept 2012]). Plaintiffs’ argument that defendants failed to adequately object to the consideration of certain evidence and testimony regarding Secured’s relationship with nonparty GemShares is undermined by the federal District Court’s supplemental order (NYSCEF Doc. No. 15) clarifying a prior in limine order (NYSCEF Doc. No. 4), which clarified that: “the in limine ruling does not bar either party from introducing evidence about (1) the relationship between GemShares and Secured Worldwide; (2) how Kinney became involved with Secured Worldwide…. Kinney’s time at GemShares provides necessary background for the claims in suit.” (NYSCEF Doc. No. 15 at 1 [emphasis added].) Thus, the court in the Federal Action had expressly held that the evidence and testimony to which plaintiffs assert defendants should have objected, was admissible. Plaintiffs do not dispute that the evidence was relevant to Kinney’s counterclaims against them and they fail to cite any authority for the illogical proposition that an attorney must object to the consideration of evidence even when such objection would be futile, in order to avoid liability for malpractice. Additionally, and as a general matter, disagreement with an attorney’s reasonable strategic and tactical choices is not grounds for malpractice (Iocovello v. Weingrad & Weingrad, LLP, 4 AD3d 208 [1st Dept 2004]), and “hindsight…is an unreliable test for determining the past existence of legal malpractice” (Sklover & Donath, LLC v. Eber-Schmid, 71 AD3d 497, 498 [1st Dept 2010] [internal quotation marks and citations omitted]). Further, and specifically with regard to defendants’ asserted failure to elicit impeachment evidence from a witness, the trial testimony shows that the witness had no recollection of a conversation with Kinney regarding the patent involved in the underlying dispute in the Federal Action (see, NYSCEF Doc. No. 19 at 4- 5). It is unreasonable to expect that defendants should have then attempted to get the witness to impeach his own testimony after claiming that he had no recollection. Finally, plaintiffs do not dispute that Lipton instructed defendants not to appeal the verdict against Secured (email exchange, NYSCEF Doc. No. 20). Whether to take an appeal after an adverse judgment, is committed to the client rather than the attorney (Rules of Professional Conduct [22 NYCRR 1200.0] rule 1.2[a] ["a lawyer shall abide by a client's decisions concerning the objectives of representation"]). Moreover, on appeal of the verdict of the court after a bench trial, the court’s findings of fact are subject to a “clear error” standard of review (Atlantic Specialty Ins. Co. v. Coastal Envtl. Group Inc., 945 F3d 53, 63 [2d Cir 2019]). Plaintiffs fail to allege that an appeal would have been successful, as they do not allege facts showing that they could have reached the “clear error” standard. Accordingly, they have also failed to demonstrate that the failure to appeal was a proximate cause of any of their damages. The proposed amended verified complaint is similarly deficient. The only additional allegations of note are that defendants should have objected sooner to discussion of a letter that was ultimately admitted in part based on the court’s belief that sufficient questioning on the topic had occurred without objection, and that Lipton was not informed that a failure to appeal might lead to a future collateral estoppel finding. As set forth above, plaintiffs do not deny the relevance and admissibility of the letter, which renders irrelevant the timing of any futile objection to its admission. As to whether Lipton was fully informed, the proposed amended verified complaint does not sufficiently allege that such an appeal would have been successful. The amended complaint is thus “palpably insufficient” (Yong Soon Oh v. Hua Jin, 124 AD3d 639, 640 [2d Dept 2015]). Accordingly, it is ORDERED that the defendants’ motion to dismiss the verified complaint is granted, and the cross-motion for leave to amend is denied; and it is further ORDERED that the Clerk of the Court is directed to enter judgment in favor of defendants dismissing the action. This constitutes the decision and order of the court. CHECK ONE: X CASE DISPOSED NON-FINAL DISPOSITION X GRANTED DENIED GRANTED IN PART OTHER APPLICATION: SETTLE ORDER SUBMIT ORDER CHECK IF APPROPRIATE: INCLUDES TRANSFER/REASSIGN FIDUCIARY APPOINTMENT REFERENCE Dated: August 28, 2023
