Leon Petroleum, LLC v. Carl S. Levine & Assocs., P.C.

CHERYL E. CHAMBERS

Affirmed in part and appeal dismissed in part.

Somer & Heller, LLP, Commack, N.Y. (Michael C. Marcus of counsel), for appellants. McManus & Richter, P.C., New York, N.Y. (Scott C. Tuttle and Jillian M. Amagsila of counsel), for respondents.

In an action to recover damages for legal malpractice, the plaintiffs appeal from an order of the Supreme Court, Suffolk County (Martin, J.), dated December 5, 2012, which granted the defendants' motion for summary judgment dismissing the complaint and denied the defendants' motion in limine to preclude certain testimony at trial as academic, rather than on the merits.

ORDERED that the appeal from so much of the order as denied the defendants' motion in limine to preclude certain testimony at trial is dismissed, as the plaintiffs are not aggrieved by that portion of the order ( see CPLR 5511) and because that portion of the order appealed from is an evidentiary ruling, which is neither appealable as of right nor by permission ( see Curtis v. Fishkill Allsport Fitness & Racquetball Club, Inc., 2 A.D.3d 768, 769 N.Y.S.2d 411); and it is further,

ORDERED that the order is affirmed insofar as reviewed; and it is further,

ORDERED that one bill of costs is awarded to the defendants.

To establish a cause of action alleging legal malpractice, a plaintiff must show that the attorney failed to exercise the care, skill, and diligence commonly possessed and exercised by a member of the legal profession, and that such negligence was a proximate cause of the actual damages sustained ( see Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385; Frederick v. Meighan, 75 A.D.3d 528, 531, 905 N.Y.S.2d 635). Under the attorney judgment rule, “selection of one among several reasonable courses of action does not constitute malpractice” ( Rosner v. Paley, 65 N.Y.2d 736, 738, 492 N.Y.S.2d 13, 481 N.E.2d 553; see Ackerman v. Kesselman, 100 A.D.3d 577, 954 N.Y.S.2d 103; Bua v. Purcell & Ingrao, P.C., 99 A.D.3d 843, 847, 952 N.Y.S.2d 592). “To establish entitlement to the protection of the attorney judgment rule, an attorney must offer a ‘reasonable strategic explanation’ for the alleged negligence” ( Ackerman v. Kesselman, 100 A.D.3d at 579, 954 N.Y.S.2d 103, quoting Pillard v. Goodman, 82 A.D.3d 541, 542, 918 N.Y.S.2d 461). “To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer's negligence” ( Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d at 442, 835 N.Y.S.2d 534, 867 N.E.2d 385; see Blanco v. Polanco, 116 A.D.3d 892, 894, 986 N.Y.S.2d 151).

Here, the defendants established their entitlement to judgment as a matter of law by demonstrating that the failure to draft clear, specific, and unambiguous language in an agreement for the purchase of assets, so as to provide that the subject assets included certain unpaid condemnation awards, was a reasonable strategic decision taken to avoid an increase in the purchase price, and that the drafting of more specific language would not have resulted in the inclusion of the condemnation awards in the sale without an increase in the purchase price. In opposition, the plaintiffs failed to raise a triable issue of fact with respect to either element of the legal malpractice cause of action ( see Zuckerman v. City of New York, 49 N.Y.2d 557, 562, 427 N.Y.S.2d 595, 404 N.E.2d 718). “A ‘mere hope ... that somehow or other on cross examination credibility of a witness ... can be put in issue is not sufficient to resist a motion for summary judgment’ ” ( Trails W. v. Wolff, 32 N.Y.2d 207, 221, 344 N.Y.S.2d 863, 298 N.E.2d 52, quoting Hurley v. Northwest Publ. Inc., 273 F.Supp. 967, 974 [D.Minn.], affd. 398 F.2d 346 [8th Cir.]; see Angeles v. Goldhirsch, 268 A.D.2d 217, 700 N.Y.S.2d 460). Accordingly, the Supreme Court properly granted the defendants' motion for summary judgment dismissing the complaint ( see Rodriguez v. Lipsig, Shapey, Manus & Moverman, P.C., 81 A.D.3d 551, 552, 917 N.Y.S.2d 563; Noone v. Stieglitz, 59 A.D.3d 505, 507, 873 N.Y.S.2d 661).

The plaintiffs are not aggrieved by the denial of the defendants' motion in limine ( see CPLR 5511; Mixon v. TBV, Inc., 76 A.D.3d 144, 156–157, 904 N.Y.S.2d 132; Quality King Distribs. v. Arvin, 228 A.D.2d 658, 659, 644 N.Y.S.2d 972). In addition, the portion of the order denying the defendants' motion in limine is an evidentiary ruling. Such a ruling, even when made “in advance of trial on motion papers, constitutes, at best, an advisory opinion, which is neither appealable as of right nor by permission” ( Chateau Rive Corp. v. Enclave Dev. Assoc., 283 A.D.2d 537, 537, 725 N.Y.S.2d 215; see Curtis v. Fishkill Allsport Fitness & Racquetball Club, Inc., 2 A.D.3d 768, 768, 769 N.Y.S.2d 411). For both of these reasons, that portion of the appeal must be dismissed.