Lewis v. Desmond

• Decision Date: 05 November 1992
• Citation: Lewis v. Desmond, 589 N.Y.S.2d 678, 187 A.D.2d 797 (N.Y. App. Div. 1992)
• Parties: Paul LEWIS, Respondent, v. John L. DESMOND, Appellant.
• Court: New York Supreme Court — Appellate Division

Page 678

589 N.Y.S.2d 678

187 A.D.2d 797

Paul LEWIS, Respondent, v. John L. DESMOND, Appellant.

Supreme Court, Appellate Division Third Department.

Nov. 5, 1992.

Friedman, Hirschen, Miller, Coughlin & Campito, P.C. (Scott L. Ne Jame of counsel), Schenectady, for appellant.

Paul M. Whitaker (Deborah L. Hardick of counsel), Albany, for respondent.

Before WEISS, P.J., and MERCURE, CREW, MAHONEY and CASEY, JJ.

CASEY, Justice.

Appeal from an order of the Supreme Court (Best, J.), entered December 17, 1991 in Schenectady County, which denied defendant's motion for summary judgment dismissing the complaint.

Defendant, an attorney, represented plaintiff in administrative and judicial proceedings arising out of charges that plaintiff, as the holder of a liquor license for premises in Schenectady County, had violated certain provisions of the Alcoholic Beverage Control Law. As a result of the proceedings, plaintiff's liquor license was canceled and his subsequent efforts to obtain a new license were unsuccessful. Plaintiff thereafter commenced this action against defendant, asserting 11 causes of action.

The first two causes of action are based upon allegations that defendant failed to pay a stenographer's fee with money given to defendant for that purpose. The remaining causes of action allege that plaintiff sustained various damages as a result of certain assurances and misrepresentations made by defendant. Defendant's motion for summary judgement dismissing the complaint was denied, resulting in this appeal.

Defendant's brief focuses only on the nine causes of action which allege that he made certain assurances and misrepresentations. According to defendant, he made only expressions of future expectations, predictions or promises of future conduct, which are not actionable (see, Country-Wide Leasing Corp. v. Subaru of Am., 133 A.D.2d 735, 736, 520 N.Y.S.2d 24, lv. denied 70 N.Y.2d 615, 526 N.Y.S.2d 436, 521 N.E.2d 443). Plaintiff contends that the allegations are sufficient to state viable causes of action of legal malpractice based upon defendant's faulty legal advice (see, Werle v. Rumsey, 278 N.Y. 186, 15 N.E.2d 572; Scheller v. Martabano, 177 A.D.2d 690, 576 N.Y.S.2d 1009).

The third and fourth causes of action seek to recover damages for the costs incurred by plaintiff in contesting the State Liquor Authority's notice of charges, including the legal fees paid to defendant and the $1,000 license bond forfeited by plaintiff when the license was canceled. Plaintiff alleges that when he first consulted defendant, defendant assured him that the most serious charges would not be sustained and that the maximum possible penalty would be a 30-day suspension. According to plaintiff, defendant knew or should have known that the charges were serious, that plaintiff had no defense and that the penalty of cancellation was a virtual certainty. Plaintiff claims that if defendant had advised him of the futility of contesting the charges, he would have surrendered his license, thereby avoiding the litigation costs. In hindsight, surrender of plaintiff's license may have been the more prudent course of action, but there is no evidence in the record that it was unreasonable for defendant to advise plaintiff to defend the charges. "Legal malpractice consists of the failure of an attorney to exercise that degree of skill commonly exercised by an ordinary member of the legal community, resulting in damages to the client * * * " (Saveca v. Reilly, 111 A.D.2d 493, 494, 488 N.Y.S.2d 876 [citation omitted], but "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" (Bernstein v. Oppenheim & Co., 160 A.D.2d 428, 430, 554 N.Y.S.2d 487). We conclude that defendant's conduct, which allegedly led plaintiff to pursue defense of the charges rather than surrender of his license, falls into the latter category and is not actionable. We also view plaintiff's claim that he would have surrendered his license had he received different legal advice to be pure speculation.

Plaintiff's fifth cause of action seeks to recover damages sustained as a result of defendant's failure to protect and...