Dohyoung Kim v Seidler
Annotate this CaseDecided on May 31, 2013
Civil Court of the City of New York, New York County
Dohyoung Kim, Plaintiff
against
Alan Seidler, Defendant.
1206 SCNY 2012
Counsel for Plaintiff:Dohyoung Kim
Pro Se
Counsel for Defendant: Alan Seidler, Esq
Pro Se
580 Broadway, Rm 709
New York, NY 10012
Nancy M. Bannon, J.
In this small claims action seeking $5,000 in damages upon a theory of legal malpractice, the defendant moves, pursuant to CPLR 3212, for summary judgment dismissing the complaint. The motion is granted.
The plaintiff, Dohyoung Kim, was charged in a federal indictment with participating, with 21 other individuals, in a conspiracy to transport women in interstate and foreign commerce for the purposes of prostitution in violation of 18 USC §§ 2421 and 2422(a), offenses carrying a maximum sentence of 10 years of imprisonment. The defendant attorney represented the plaintiff in connection with these charges. After counsel negotiated with the government, the plaintiff pleaded guilty to the lesser offense of misprision of a felony, in violation of 18 USC § 4, which carries a maximum prison term of 3 years. He received a sentence of 90 days in prison, a supervised release term of one year, a $500 fine and a $100 special assessment. Counsel also negotiated as part of the deal that the plaintiff would remain free on bail pending sentence. The plea agreement signed by the plaintiff contained a limited waiver of his right to appeal. He also acknowledged that, since he was not a U.S. citizen, he may be deported as a result of his plea.
The plaintiff asked counsel to appeal his conviction on the grounds of sufficiency of the [*2]evidence and excessive sentence in an effort to avoid deportation. The plaintiff paid counsel $2,500 to make an application for bail pending appeal, and agreed to pay an additional $2,500 to prosecute the appeal. In August of 2011, the plaintiff paid counsel a total of $2,900, $455 of which was the fee for filing the notice of appeal. The bail application was denied. Counsel filed an appellate brief. The government moved to dismiss the appeal. On February 9, 2012, the Second Circuit granted the government's motion, and dismissed the appeal, finding that the defendant's waiver of his appellate rights was valid and enforceable, and barred the appeal. In the meantime, the plaintiff served his sentence and was released. He has not been deported.
On May 2, 2012, the plaintiff commenced this action in the Small Claims part of this court seeking to recover damages of $5,000, for "defective services rendered" by the defendant. The gravamen of the claim appears to be that the plaintiff now believes that the appeal was "useless" and filed at counsel's insistence only for the purpose of collecting additional legal fees, and seeks the return of the fees. The defendant now moves for summary judgment dismissing the complaint on two grounds: (1) the claim is barred under Carmel v Lunney, 70 NY2d 169 (1987) by the plaintiff's conviction upon his plea of guilty, which stands, and (2) that, in any event, the claim is meritless since there was an arguable basis for the appeal under United States v Gomez-Perez, 215 F3d 315 (2d Cir 2000) which was prosecuted at the plaintiff's request. In addition to his own affirmation, the defendant annexes the written plea agreement, a transcript of the plea proceedings, the order of the Second Circuit granting the motion to dismiss the plaintiff's appeal, and a letter from the plaintiff to the defendant, dated September 12, 2011, asking him to appeal on the ground that the plea was legally insufficient and his sentence was excessive.
In opposition to the motion, the plaintiff submits only an unsworn, unnotarized statement in which he makes the above arguments, and appends a so-ordered memo of the District Court denying his application for bail pending appeal, and e-mail correspondence between him and counsel concerning the appeal, which pre-dates the September 12, 2011 letter.
The motion is granted and the claim is dismissed upon both grounds.
A cause of action for legal malpractice arising from representation in a criminal proceeding may not be maintained where "the determination of [plaintiff's] guilt of that offense remains undisturbed." Carmel v Lunney, 70 NY2d 169, 173 (1987). "A plea of guilty bars one's recovery for legal malpractice, [r]egardless of the plaintiff's subjective reasons for pleading guilty.'" Casement v O'Neill, 28 AD3d 508, 509 (2d Dept 2006), quoting Kaplan v Sachs, 224 AD2d 666, 667 (2d Dept 1996), lv denied 88 NY2d 952 (1996). In light of the plaintiff's plea of guilty and conviction, which was unsuccessfully appealed, he "can neither assert, nor establish, his innocence." Carmel v Lunney, supra at 173; see Malpeso v Burstein & Fass, 257 AD2d 476 (1st Dept 1999). As such, he has failed to state a cause of action for legal malpractice.
The claim is subject to dismissal on the additional ground that the plaintiff failed to establish any malpractice. To prevail in this legal malpractice claim, the plaintiff must demonstrate that the defendant failed to exercise that degree of care, skill and diligence commonly possessed by a member of the legal profession, and that this failure caused damages. See AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434 (2007); Tortura v Sullivan Papain Block McGrath & Cannavo, P.C., 21 AD3d 1082 (2d Dept 2005), lv denied 6 NY3d 701 (2005). The plaintiff must establish a "but for" relationship between the alleged malpractice and the damages sustained. See Waggoner v Caruso, 14 NY3d 874 (2010); Rudolf v Shayne, Dachs, [*3]Stanisi, Corker & Sauer, 8 NY3d 438 (2007). Further, the plaintiff must establish the malpractice by way of expert opinion. See Cosmetics Plus Group, Ltd. v Traub, 105 AD3d 134 (1st Dept 2013), lv denied 22 NY3d 855 (2013). He has failed to do so.
Similarly, counsel, as a defendant seeking to dismiss a legal malpractice claim, can satisfy his prima facie entitlement to summary judgment by submitting an expert opinion that any or all of the elements of the plaintiff's claim were not met. It is well settled that a party may provide this expert opinion. See CPLR 4512; Thoma v Thoma, 21 AD3d 1080 (2d Dept 2005). Thus, the defendant, as an attorney, may provide an expert opinion on the issue of legal malpractice. See Landa v Blocker, 87 AD3d 719 (2d Dept 2011); Zasso v Maher, 226 AD2d 366 (2d Dept 1996). In setting forth in detail the procedural history of the case in his affirmation, the defendant has met this burden by demonstrating that he exercised the requisite level of care, skill and diligence in representing the plaintiff.
In any event, no expert opinion is required where, as here, the issue presented is purely a matter of law which the court can determine without the benefit of an expert opinion. See Cosmetics Plus Group, Ltd. v Traub, supra. The issue of whether there was an adequate basis for the appeal is a matter of law which the court can determine. See Cosmetics Plus Group, Ltd. v Traub, supra; Wo Yee Hing Realty Corp. v Stern, 99 AD3d 58 (1st Dept 2012). As correctly argued by the defendant, the plaintiff's plea included a limited waiver of his right to appeal, expressly allowing him to challenge aspects of his sentence under certain circumstances, and the legal sufficiency of the plea allocation, as provided by United States v Gomez-Perez, supra. The plaintiff provides no authority to the contrary.
Furthermore, the transcript of the plaintiff's plea proceeding establishes that the court explained to the plaintiff his limited right of appeal, and the entire plea bargain, and he indicated that he understood all of the terms. The defendant's proof further demonstrates that he prosecuted the appeal on those grounds, at the plaintiff's request. By this evidence, the defendant established his prima facie entitlement to summary judgment dismissing the complaint. See CPLR 3212; Alvarez v Prospect Hospital, 68 NY2d 320 (1986).
In opposition to the motion, the plaintiff fails to raise any material issue of fact sufficient to warrant the denial of the motion. See Cashman v Berroa, 101 AD3d 563 (1st Dept 2012); Alvarez v Prospect Hospital, supra. His unsworn and unnotarized statement is without probative value. See Salt Aire Trading LLC v Sidley Austin Brown & Wood, LLP, 93 AD3d 452 (1st Dept 2012). Even overlooking these procedural defects, the statement includes no allegation that can be reasonably interpreted to refute counsel's proof that he exercised that degree of care, skill and diligence commonly possessed by a member of the legal profession. By failing to present any conflicting expert opinion, the plaintiff has failed to raise any credibility issue that requires trial for resolution. See Iulo v Staten Island University Hosp., 106 AD3d 696 (2d Dept 2013). Nor do the emails and court document appended to the plaintiff's statement warrant denial of the motion. Rather, this court document corroborates the defendant's claim that he made a bail application, and the emails show that he fully explained the appeal grounds and process to the plaintiff, and that the plaintiff's check for legal fees bounced.
To the extent that the plaintiff is asserting a claim of ineffective assistance of counsel, the court finds that he has not established the extraordinary circumstances necessary to warrant consideration of such a claim in the context of this civil litigation. See Eastern Capital Group, [*4]LLC v 26 Realty Builders USA, Inc., 81 AD3d 686 (2d Dept 2011); McVeigh v Curry, 74 AD3d 915 (2d Dept 2010); Cheung v Indoor Outdoor Flooring Supplies, Inc., 22 Misc 3d 135(A) (App Term 1st Dept 2009). Nor has he advanced that claim in any criminal proceeding.
Accordingly, it is:
ORDERED that the motion is granted, and the complaint is dismissed, and it is further,
ORDERED that the Clerk shall enter judgment accordingly.
This constitutes the Decision and Order of the court.
Dated: May 31, 2013
____________________________NANCY M. BANNON, J.C.C.
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