Schlenker v Cascino

[*1] Schlenker v Cascino 2013 NY Slip Op 50631(U) Decided on April 12, 2013 Supreme Court, Albany County Platkin, J. Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and will not be published in the printed Official Reports.

Decided on April 12, 2013
Supreme Court, Albany County

Dennis B. Schlenker, Plaintiff,

against

Salvatore Cascino, 13 LACKAWANNA PROPERTIES, BRONX COUNTY RECYCLING, LLC, TACONIC MEADOWS, LLC, TEN MILE RIVER, LLC and COPAKE VALLEY FARM, LLC., Defendants.



5650-11



Napierski, Vandenburgh, Napierski & O'Connor, LLP

Attorneys for Plaintiff on the Counterclaim

(By: Shawn T. Nash, Esq.)

296 Washington Avenue Ext. Ste. 3

Albany, New York 12203

Law Office of John Hoggan, PLLC

Attorneys for Plaintiff

(By: John Hoggan, Esq.)

90 State Street

Albany, New York 12207

Sullivan Gardner, P.C.

Attorneys for Defendants

(By: Brian Gardner, Esq.)

7 East 20th Street

New York, New York 10003

Richard M. Platkin, J.

Plaintiff brought this action seeking to recover monies for legal services rendered to defendants. In response, defendants asserted a counterclaim for legal malpractice. After disclosure was completed and a note of issue filed, the Court established a day certain for trial of April 8, 2013. Subsequently, plaintiff moved for summary judgment on the breach of contract and account-stated causes of action and for dismissal of the counterclaim. The Court granted summary judgment to plaintiff on the claim for an account stated, denied as moot the application with respect to the claim for breach of contract and granted in part and denied in part the application to dismiss the counterclaim for legal malpractice (Schlenker v Cascino, et al., Supreme Court, Albany County, Index No. 5650-11, December 31, 2012, Teresi, J.).

In a Decision & Order dated April 9, 2013, the Court (Platkin, J.) denied defendants' motion in limine seeking, inter alia, leave to serve late expert disclosure and for an adjournment of the trial in order to retain a legal expert. The Court found that defendants had not demonstrated good cause for their belated adjournment request or for their failure to previously retain and disclose an expert.

A jury was selected on April 8, 2013, and proof commenced the following morning. Defendants offered documentary evidence and the testimony of three witnesses in support of their counterclaim for legal malpractice: plaintiff Dennis Schlenker; David Wiener, a consultant to defendants; and defendant Salvatore Cascino. At the close of defendants' case in chief, plaintiff moved for a directed verdict. Oral argument on the motion was held on April 12, 2013. This Decision & Order follows.

LEGAL STANDARD

"Any party may move for judgment with respect to a cause of action . . . upon the ground that the moving party is entitled to judgment as a matter of law, after the close of the evidence presented by an opposing party" (CPLR 4401). "A directed verdict pursuant to CPLR 4401 is appropriate when, viewing the evidence in a light most favorable to the nonmoving party and affording such party the benefit of every inference, there is no rational process by which a jury could find in favor of the nonmovant" (Hytko v Hennessey, 62 AD3d 1081, 1083 [3d Dept 2009] [citations omitted]).

"In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages" (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007] [internal quotation marks and citations omitted]).

Generally, a party prosecuting a legal malpractice claim must adduce expert testimony "delineating the appropriate standard of professional care and skill to which [the attorney] was required to adhere under the circumstances" (Orchard Motorcycle Distribs., Inc. v Morrison Cohen Singer & Weinstein, LLP, 49 AD3d 292, 293 [1st Dept 2008]; see Northrop v Thorsen, 46 AD3d 780 [2d Dept 2007]). "An exception to that principle exists where the ordinary experience of the fact finder provides sufficient basis for judging the adequacy of the professional service" (S & D Petroleum Co. v Tamsett, 144 AD2d 849, 850 [3d Dept 1988]) or "the attorney's conduct falls below any standard of due care" (Northrup, 46 AD3d at 782). [*2]

This limited exception generally has been reserved for cases where an attorney ignores a well-established filing or notice requirement or the attorney breaches an express promise to achieve a particular result (compare Whalen v DeGraff, Foy, Conway, Holt-Harris & Mealey, 53 AD3d 912 [3d Dept 2008] ["defendant knew of the deadline for filing the notice of claim and took no steps whatsoever to even inquire as to the status of that filing"]; Northrup, 46 AD3d at 782 ["the [attorney's] disregard or ignorance of a . . . clearly defined and firmly established rule . . . , including his failure to take appropriate action when the rule was called to his attention, fell below any permissible standard of due care"]; Shapiro v Butler, 273 AD2d 657, 658 [3d Dept 2000] [failure to timely interpose answer]; S & D Petroleum Co., 144 AD2d at 849 [failure to file security agreement]; Serhofer v Groman & Wolf, 203 AD2d 354 [2d Dept 1994] [attorneys agreed "to draft a particular contract provision for the (client) which would achieve a specific result and . . . failed to draft that provision"]; Butler v Brown, 180 AD2d 406 [1st Dept 1992] ["no need for expert testimony with respect to whether the case had been marked off' and defendant's malpractice for failure to restore it"] with Orchard, 49 AD3d at 292 [expert needed to address attorney's handling of legal issues arising out of foreclosure action]; Merlin Biomed Asset Mgt., LLC v Wolf Block Schorr & Solis-Cohen LLP, 23 AD3d 243 [1st Dept 2005] [drafting of specialized agreements]; Ehlinger v Ruberti, Girvin & Ferlazzo, 304 AD2d 925, 926 [3d Dept 2003] [attorney's decision not to pursue pendente lite relief in matrimonial action]; Suppiah v Kalish, 76 AD3d 829 [1st Dept 2010] [attorney's handling of immigration law matter]).

In assessing whether plaintiff breached his professional obligations to defendants, the Court also is mindful that "where allegations involve errors in the exercise of an attorney's professional judgment in areas such as strategy, the selection of appropriate evidence or argument, they are not actionable as malpractice" (Bixby v Somerville, 62 AD3d 1137, 1140 [3d Dept 2009]). "Attorneys are free to select among reasonable courses of action in prosecuting clients' cases without thereby exposing themselves to liability for malpractice" (Iocovello v Weingrad & Weingrad, 4 AD3d 208 [1st Dept 2004]; Pacesetter Communs. Corp. v Solin & Breindel, 150 AD2d 232, 235-236 [1st Dept 1989] [complaints "are no more than the second-guessing of counsel's strategic judgment in the selection of trial tactics"]). Thus, settled law holds that "an attorney is not held to the rule of infallibility and is not liable for an honest mistake of judgment where the proper course is open to reasonable doubt" (Lewis v Desmond, 187 AD2d 797, 798-799 [3d Dept 1992]; see Mars v Dobrish, 66 AD3d 403 [1st Dept 2009]).

In addition to demonstrating that the attorney failed to exercise the ordinary skill and knowledge commonly possessed by a member of the legal profession, the proponent of the legal malpractice claim must demonstrate that the attorney's breach of duty caused actual and ascertainable damages. "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" (Rudoph, 8 NY3d at 442). The testimony of an expert generally is required to demonstrate a causal connection between the attorney's breach of professional duty and the claimed damages, so long as the issue is not one within the ken of an ordinary juror (Tran Han Ho v Brackley, 69 AD3d 533 [1st Dept 2010]; Ehlinger, 304 AD2d at 926 ["Plaintiff's responding papers fail to raise a question of fact as to pendente lite relief because he submits no expert affidavit . . . opining that a pendente lite restraint could have been obtained"]).

[*3]ANALYSIS

Defendants' allegations of malpractice pertain to plaintiff's representation of them in an enforcement action brought by the Town of Copake ("the Town"). The action ultimately proceeded to trial ("the Copake Trial") over three days in February and March of 2009. Following the close of proof and the parties' submission of proposed factual findings and legal memoranda, Supreme Court, Columbia County (Nichols, J.) determined that defendants had violated certain provisions of the Town Code by depositing solid waste, operating a recycling business and storing commercial equipment and materials without proper authorization. In so doing, Supreme Court rejected defendants' contention that the Town's actions unreasonably restricted their right to engage in farming operations in violation of Agriculture & Markets Law ("AML") § 305-a (see Town of Copake v 13 Lackawanna Props., LLC, 99 AD3d 1061,1062 [3d Dept 2012]).

On appeal, the bulk of Supreme Court's order and judgment was affirmed, but the Appellate Division did reverse a provision directing defendants to restore a certain farm road on the ground that the Town "failed to demonstrate that the farm road is a structure' within the meaning of the Town Code or that a permit for widening the road was required under the Town Code" (id. at 1065). The Appellate Division also modified a remedial injunction issued by Supreme Court to "clarif[y]" that "defendants are not enjoined from (1) performing any construction or excavation on the premises that does not require a permit pursuant to the Code of Town of Copake, (2) engaging in agricultural enterprises, and (3) using the garage for the maintenance, repair and storage of farm equipment" (id.).

A.Department of Agriculture & Markets Letters

Defendants' principal allegation of legal malpractice pertains to plaintiff's decision not to introduce into evidence at the Copake Trial three documents issued to them by the New York State Department of Agriculture & Markets ("the Department").

The first document, a letter dated March 5, 2008 (Ex. G), was written in response to defendants' request to the agency for an AML § 305-a opinion. The Department "determined based upon the information submitted by [defendants] that the [defendants' property] did produce, harvest and market crops in 2007 and to that extent qualifies as a farm operation . . . . As such, to the extent that [defendants are] engaged in the production, preparation and marketing of crops, livestock and livestock products as a commercial enterprise, the land, buildings and equipment which contribute to the enterprise are part of a farm operation'".

The second document, captioned "Opinion Concerning Soil Reconstruction and Rock Removal on Land Owned by 13 Lackawanna Properties, LLC" (Ex. H), is an opinion issued by the Department pursuant to AML § 308 (4). The opinion letter references a September 24, 2008 site visit conducted in connection with an AML § 305-a request and notes that "the site conditions described in [defendants'] AML § 308 (4) request did not reflect the conditions that were on-site." Nonetheless, the Department offered its opinion "that the use of the land in question for the removal of rock outcropping within crop fields, the replacement of soil that was removed, and the spreading of topsoil from wetlands onto crop fields, is agricultural in nature." The Department further opined that "[t]he removal of trees in slight depressions and the importing of soil to bring such in-field topographic features into production would also be [*4]beneficial to the farm and would be agricultural in nature."

Finally, on March 11, 2009, the Department issued a 10-page letter (Ex. I). The letter reiterates the Department's view that "the farm is a farm operation' for purposes of AML § 305-a (1)." The bulk of the letter pertains to a decision of the Town Planning Board disapproving a site plan application submitted by defendants. While critical of the Planning Board's denial, the letter does acknowledge that the Planning Board was entitled to consider defendants' past history with the site and the Town and recognized that nothing in AML § 305-a precluded the Town from bringing an enforcement action "to the extent that the [proposed] structures are used for a non-agricultural purpose." The Department concluded that the Planning Board's denial of the site plan was "unreasonably restrictive", but gave the Town thirty days to respond with evidence and documentation in support of its claim that the public health and safety would be threatened by the defendants' use of the property. Finally, the letter noted that the property is subject to a July 12, 2007 consent decree ("Consent Decree") and a temporary restraining order issued by Supreme Court in the Copake matter ("the TRO"), and advised that the Department's role is limited to evaluating whether the actions of a municipality unreasonably restrict or regulate a farming operation within an agricultural district.

Defendants argue that plaintiff did not exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession when he failed to introduce these three letters from the Department at the Copake Trial in support of the AML § 305-a defense. Defendants further contend that this breach of duty subjected them to an onerous remedial order, which called for the removal of 150,000 cubic yards of fill,[FN1] and caused them to incur additional legal fees.

At the instant trial, plaintiff testified that he decided not to seek the introduction of these documents into evidence after weighing a number of strategic considerations. Among other things, plaintiff testified that he did not believe that these documents reflected the Department's final word on the subject. Plaintiff explained that he was aware that the Department was reconsidering its prior determinations based upon allegations that defendants' alleged agricultural use of the property was merely a pretext for commercial activities, including solid waste disposal. In this connection, plaintiff testified that defendants' activities at the site were the subject of vigorous community and political opposition, and counsel was concerned that the Department had been provided detailed new information by the Town and others about the defendants' activities that was contrary to the information the agency relied upon in formulating its views. Indeed, the March 11, 2009 letter expressly invited and contemplated further submissions from the Town regarding the health and safety impact of defendants' operations. Plaintiff explained that in his professional judgment, defendants would lose credibility with the trial court if they chose to rely upon Department determinations that were later disavowed by the agency. Plaintiff expressed similar concern about the Court's reaction if it were determined that his clients had operated outside the bounds of the Department's determinations.

Indeed, on March 31, 2009, after proof had closed in the Copake Trial, the Department wrote to the Town to confirm that its AML § 305-a review was "on-going" and it had "received a number of inquiries from concerned citizens, local officials and state representatives regarding [*5]this matter" (Ex. J). The Department further stated that it would consider the new information provided by the Town regarding the alleged threats to health and safety posed by defendants' activities on the site "before the Commissioner makes any final determination in the matter." The Department further emphasized that its March 11, 2009 "letter is an interim step in a deliberative review [process]."

On May 11, 2009, the Department changed tack, advising that "it would be premature to move forward with [its] AML § 305-a review" until the Copake litigation and other pending legal matters concerning the site were resolved (Ex. OO).

The Court concludes that defendants have failed to adduce legally sufficient proof to support their claim that plaintiff deviated from relevant professional standards in failing to introduce the three Department letters at the Copake Trial. An attorney's exercise of professional judgment involving the selection of appropriate evidence to be introduced at trial generally is not actionable as malpractice (Bixby, 62 AD3d at 1140). Given the ongoing nature of the AML § 305-a review process, concerns that the Town and others had presented the Department with damaging new evidence, and the prospect that the Department's interim determinations would soon be withdrawn or limited, plaintiff's uncontroverted testimony establishes as a matter of law that his decision not to introduce the Department letters constituted a reasonable course of action under the circumstances. To be sure, introducing the letters in an effort to bolster Mr. Cascino's testimony, as defendants' current counsel advocates, may well have been a legitimate trial strategy. But the "selection of one among several reasonable courses of action does not constitute malpractice" (Rosner v Paley, 65 NY2d 736, 738 [1985]).

Indeed, with the benefit of hindsight, plaintiff's concerns regarding the Department proved to be well-founded. Within weeks of the March 11, 2009 letter, the Department issued a new letter that referenced the health and safety concerns raised by the Town. This letter also emphasized the "interim" and non-final nature of the agency views previously expressed and plainly contemplated that the prior determinations would be revisited in light of the new information received from the Town and others. And on May 11, 2009, the Department abandoned its AML § 305-a review process altogether, essentially choosing to defer to the ongoing judicial process, which included the Copake Trial.

In any event, even if counsel's strategic decision were actionable as malpractice, expert proof would be required to establish that plaintiff's failure to introduce the Department letters fell below the applicable standard of professional care under the circumstances. The record is devoid of proof "delineating the appropriate standard of professional care and skill to which [plaintiff] was required to adhere under the circumstances" (Orchard, 49 AD3d at 293). There is no bright line rule that guides an attorney in selecting appropriate evidence at trial; the issue is one that calls for the exercise of professional judgment and discretion. Here, counsel testified, without contradiction, that he considered a host of factors in deciding not to introduce the Department letters, including: the non-final nature of the Department's views; the likelihood that those views would be modified on the basis of new information; the effect that such a modification would have on defendants' credibility; the extent to which defendants were operating within the bounds contemplated by the Department's letters; the impact that actions in the Copake Trial would have on all of the other legal matters in which defendants were involved; the potential for the letters to have opened the door to the introduction of damaging evidence; and the degree of deference that [*6]the Court would accord to interim determinations where the Department had solicited and was receiving new evidence as part of an ongoing review process directed at formulating a final opinion.[FN2]The ordinary experience of lay jurors simply does not provide them with a sufficient basis for assessing the adequacy of this type of exercise of professional judgment and discretion by an attorney.

Defendants' claim of malpractice fails for an additional, independent reason. The proof adduced by defendants does not provide a legally sufficient basis to meet the rigorous but-for standard of causation applicable to a claim of legal malpractice (see Country Club Partners, LLC v Goldman, 79 AD3d 1389, 1391-1392 [3d Dept 2010]; Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 272 [1st Dept 2004]; Ulico Cas. Co. v Wilson, Elser, Moskowitz, Edelman & Dicker, 56 AD3d 1 [1st Dept 2008]). The absence of expert proof leaves the lay jury without a rational process for assessing whether defendants would have prevailed at the Copake Trial had plaintiff introduced the three Department letters into evidence (see Tran Han Ho, 69 AD3d at 534; Ehlinger, 304 AD2d at 926). Indeed, viewing the proof in a light most favorable to defendants and giving them the benefit of all favorable inferences, the proof adduced at the instant trial fails to support defendants' claim that they would have prevailed at the Copake Trial had the three Department letters been received into evidence.

In ruling against defendants in the Copake matter, Supreme Court relied principally upon the observed uses of the property by Town officials and others over many years and the "conclusory" testimony of Mr. Cascino regarding his farming activities, which was found to be "lacking in credibility" (99 AD3d at 1062-1063). These findings were affirmed by the Appellate Division. The Department's letters, compiled largely on the basis of defendants' self-serving representations and a single site visit, would have had limited probative value. Likewise, insofar as defendants were using the site in ways that went beyond the highly circumscribed agricultural uses contemplated by the Department's determinations, the agency's views would likely have been given little weight. Further, it is unclear from the present record what, if any, degree of judicial deference would have been accorded to interim, non-final determinations that contemplated the agency's receipt of additional information. While a footnote in the Appellate Division decision did reference the absence of an opinion from the Department (id. n 2), it clearly was an additional basis for affirmance that was not relied upon by Supreme Court in rejecting the AML § 305-a defense and does not speak to the legal effect of the particular Department determinations and opinions at issue here. Accordingly, there is no rational view of the evidence upon which to conclude that defendants would have prevailed on their AML § 305-a defense if [*7]the limited and incredible proof they put forward in the Copake Trial were augmented by the three Department letters.

Of course, even if the Court had been presented with the Department's determinations and accorded them controlling weight, the Department's subsequent correspondence, which certainly would have been made part of the evidentiary record, would have left these interim determinations lacking in persuasive force. Indeed, after emphasizing in its March 31, 2009 letter the interim nature of the prior determinations and the ongoing and deliberative nature of the review process for rendering a final AML § 305-a determination and soliciting new evidence from the Town, the agency advised only six weeks later that it was, in essence, abandoning its administrative process and deferring to the courts. Under the circumstances, defendants have not provided a legally sufficient basis for concluding that the introduction of the Department letters would have altered the outcome of the Copake Trial in any respect.

B.Farm Road

The second alleged breach of duty relied upon by defendants pertains to the construction of the farm road discussed previously. It is defendants' contention that plaintiff committed malpractice by failing to argue in his post-trial submissions that the farm road was not a "structure" within the meaning of the Town Code. The post-trial submissions filed by plaintiff on behalf of defendants did not make this specific statutory argument or expressly reference the farm road, but focused generally on defendants' right to farm under AML § 305-a. The submissions did, however, refer to code-specific issues concerning a stone wall and farm stand.

The Court concludes that this claim of malpractice fails for several reasons. First, an attorney's preparation of a post-trial brief and his decisions regarding the arguments to be made therein call for the exercise of professional judgment and discretion. Even assuming that a failure to include a particular argument in a brief is actionable as malpractice, defendants have failed to offer expert proof "delineating the relevant standard of professional care and skill" with respect to this highly discretionary function. An attorney is not required to include all available arguments in a post-trial submission, and the strategic and tactical considerations that go into an attorney's calculus fall well outside the ken of an average juror. Accordingly, a lay jury has no basis for assessing the reasonableness of plaintiff's failure to specifically argue that the road fell outside the Town Code, particularly where the use of the road was in dispute and the road itself was constructed with fill.

And even if defendants could demonstrate a breach of duty in this regard, the record lacks proof that the alleged breach caused them to sustain actual and ascertainable damages. The Appellate Division reversed this aspect of Supreme Court's order and judgment, finding that "plaintiff failed to demonstrate the farm road is a structure' within the meaning of the Town Code or that a permit for widening the road was required under the Town Code" (99 AD3d at1065]). Accordingly, defendants have not incurred any costs to remediate the road. And while the legal fees and costs incurred in pursuing an appeal from an attorney's alleged malpractice may suffice (DePinto v Rosenthal & Curry, 237 AD2d 482 [2d Dept 1997]), the record does not provide a non-speculative basis for determining the reasonable value of the legal services [*8]attributable to this seemingly minor aspect of defendants' largely unsuccessful appeal.[FN3]

CONCLUSION

Viewing the evidence in a light most favorable to defendants and affording them the benefit of every favorable inference, the Court nonetheless concludes that there is no rational process by which a jury could find that plaintiff failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession in representing defendants in the Copake Trial or that any such alleged failure proximately caused defendants to sustain actual and ascertainable damages. Accordingly,[FN4] it is

ORDERED that defendants' counterclaim for legal malpractice is dismissed in all respects.

This constitutes the decision and order of the Court. The original decision and order are transmitted to the attorney for plaintiff on the counterclaim. The signing of this decision and order, and delivery of a copy of the decision and order shall not constitute entry or filing under CPLR 2220. Counsel is not relieved from the applicable provisions of that rule respecting filing, entry and notice of entry.

SO ORDERED.

ENTER.

Dated:Albany, New York

April 12, 2013

_________________________________________

Richard M. Platkin

Acting Supreme Court Justice Footnotes

Footnote 1: It is noted that defendants have not actually removed this fill from the site.

Footnote 2: In this connection, the Court rejects defendants' contention that plaintiff's testimony establishes that he misapprehended the legal principles governing the deference to be accorded to the determinations and opinions of the Department. Plaintiff's testimony in this regard, fairly construed, can only be understood as emphasizing the complexity of the legal principles governing the degree of judicial deference to be accorded to administrative determinations. Likewise, plaintiff's testimony regarding the characterization of the September 24, 2008 opinion letter from the Department cannot reasonably be viewed as evidencing counsel's lack of awareness of said opinion letter or its potential legal effect.

Footnote 3: The briefs filed by defendants with the Appellate Division are not part of the instant record, and defense counsel stated at oral argument that only a sentence or two was required to make this argument.

Footnote 4: The Court has considered defendants' remaining arguments and contentions, including their claim that the Appellate Division's "clarif[ication" of Supreme Court was occasioned by plaintiff's malpractice, but finds them to be without merit.