Opinion
2014-03-19
MILGRAM THOMAJAN & LEE, P.C., n/k/a Varet and Fink, P.C., Plaintiff–Respondent, v. GOLDEN GATE PETROLEUM, P.C., and Dennis O'Keefe, Defendants–Appellants.
Waters McPherson McNeill, P.C., Secaucus, New Jersey (Eric D. McCullough of counsel), for appellants. Wilson Elser Moskowitz Edelman & Dicker LLP, New York City (Patrick J. Lawless of counsel), for respondent.
Waters McPherson McNeill, P.C., Secaucus, New Jersey (Eric D. McCullough of counsel), for appellants. Wilson Elser Moskowitz Edelman & Dicker LLP, New York City (Patrick J. Lawless of counsel), for respondent.
PRESENT: TORRES, J.P., SHULMAN, HUNTER, JR., JJ.
PER CURIAM.
Judgment (Margaret A. Chan, J.), entered September 26, 2012, affirmed, with $25 costs.
The action arises out of plaintiff's representation of the first-named defendant, a petroleum importer, in connection with an administrative protest of a customs duty assessment imposed on a shipment of gasoline and related chemicals. The jury's verdict, finding that plaintiff did not commit malpractice in its underlying representation of defendant, was not against the weight of the evidence. The trial evidence, fairly interpreted, supports the jury's evident rejection of defendant's contention that but for plaintiff's advice, defendant would have prevailed in the underlying customs protest, one which, the record shows, defendant elected to pursue in the face of plaintiff's frank admonition that it “may prove a tough fight, the outcome of which cannot be predicted with any certainty.” The evidence, including the conflicting expert opinion testimony, permitted the jury to conclude that, in advising defendant, the lawyers of plaintiff law firm did not disregard settled law ( see Darby & Darby v. VSI Intl., 95 N.Y.2d 308, 313, 716 N.Y.S.2d 378, 739 N.E.2d 744 [2000] ) and would have permitted a jury finding that the advice itself was not the proximate cause of defendant's losses ( see Chadbourne & Parke, LLP v. HGK Asset Mgt., Inc., 295 A.D.2d 208, 209, 743 N.Y.S.2d 711 [2002] ). And while defendant posits several alternative courses that plaintiff might have pursued in the underlying administrative protest, it failed to show that the tactical decisions made by the firm did not constitute “proper strategic legal decision-making” ( Taylor v. Paskoff & Tamber, LLP, 102 A.D.3d 446, 448, 958 N.Y.S.2d 337 [2013] ), or so the jury reasonably could find. Nor was the jury's consideration of the legal malpractice issue shown to have been compromised in any way by the form of the verdict sheet, particularly when that document is viewed in the context of the charge as a whole ( see Plunkett v. Emergency Med. Serv., 234 A.D.2d 162, 163, 651 N.Y.S.2d 462 [1996] ).
The record discloses no evidentiary error warranting reversal. The out-of-court statements made by defendant's (now) deceased chief financial officer were admissible under the “speaking agent” exception to the hearsay rule ( see Loschiavo v. Port. Auth. of New York & New Jersey, 58 N.Y.2d 1040, 1041, 462 N.Y.S.2d 440, 448 N.E.2d 1351 [1983] ). Further, in light of the voluminous evidence considered by the jury, including over 60 trial exhibits introduced by defendant, any error in the exclusion of the two documents now complained of by defendant would have been harmless ( see Ramkison v. New York City Hous. Auth., 269 A.D.2d 256, 256, 702 N.Y.S.2d 825 [2000] ).
We note finally that the court properly directed a verdict in favor of plaintiff on its main claim for unpaid legal services, a claim which, as one abandoned by plaintiff's trustee in bankruptcy, revested in plaintiff at the close of the bankruptcy proceeding ( see Dynamics Corp. of Am. v. Marine Midland Bank—New York, 69 N.Y.2d 191, 195–196, 513 N.Y.S.2d 91, 505 N.E.2d 601 [1987];Culver v. Parsons, 7 A.D.3d 931, 932, 777 N.Y.S.2d 536 [2004] ).
THIS CONSTITUTES THE DECISION AND ORDER OF THE COURT.