Rastelli v. Sutter, Moffatt, Yannelli & Zerin, P. C.

• Decision Date: 19 April 1982
• Court: New York Supreme Court — Appellate Division
• Parties: Philip RASTELLI, Appellant, v. SUTTER, MOFFATT, YANNELLI & ZERIN, P. C. et al., Respondents.

Page 305

449 N.Y.S.2d 305

87 A.D.2d 865

Philip RASTELLI, Appellant, v. SUTTER, MOFFATT, YANNELLI & ZERIN, P. C. et al., Respondents.

Supreme Court, Appellate Division Second Department.

April 19, 1982.

J. Jeffrey Weisenfeld, New York City, for appellant.

Shea & Gould, New York City and Joseph W. Ryan, Jr., Garden City (Martin I. Shelton and Adam B. Gilbert, New York City, of counsel), for respondents (one brief filed).

Before DAMIANI, J. P., and LAZER, MANGANO and BROWN, JJ.

MEMORANDUM BY THE COURT.

In an action, inter alia, to recover damages for legal malpractice, plaintiff appeals from an order of the Supreme Court, Kings County, dated January 13, 1981, which granted defendants' motion for summary judgment dismissing the complaint.

Order affirmed, without costs or disbursements.

In March, 1975 plaintiff retained defendants to represent him in criminal proceedings pending in the United States District Court for the Eastern District of New York, arising out of his indictment for violation of the Sherman and Hobbs Acts (U.S.Code, tit. 15, § 1 et seq., tit. 18, § 1951 Following several adjournments, the court set March 29, 1976 as a trial date. On February 28, 1976, defendant Sutter undertook representation of another client in a State homicide trial which began on March 8, 1976. The State matter became more complex than originally anticipated, creating a conflict with plaintiff's trial date. At a pretrial conference in the District Court on March 19, 1976, plaintiff requested that he be permitted to substitute counsel. The District Court agreed to permit the substitution only if new counsel would be prepared to begin the trial on the scheduled date, March 29, 1976. At a second conference, held on March 24, the District Court refused to grant a request for a one week continuance. Plaintiff's new counsel then petitioned the United States Court of Appeals for the Second Circuit for a writ of mandamus. The petition was denied for lack of jurisdiction, but the Second Circuit requested that the District Court reconsider the denial of the request for a one week continuance (Rastelli v. Platt, 2nd Cir., 534 F.2d 1011). In response to this request the District Court postponed jury selection until April 1, and examination of witnesses did not commence until April 5, 1976, the date which plaintiff had requested in his mandamus petition.

On appeal following his conviction, plaintiff contended, inter alia, that the failure of the District Court to grant a further continuance so that new counsel could prepare his defense, denied him a fair trial and adequate representation of counsel. The Second Circuit rejected this contention stating:

"Counsel has made only generalized allegations of prejudice and has not shown any specific way in which Rastelli's defense was hampered. In the absence of any particularization of prejudice this court will not find that the denial of the continuance was an abuse of discretion Indeed the record establishes that Rastelli was represented vigorously and competently by his counsel." (United States v. Rastelli, 2nd Cir., 551 F.2d 902, 906, cert. den. 434 U.S. 831, 98 S.Ct. 115, 54 L.Ed.2d 91.)

Plaintiff now brings this action against defendants, his original counsel, alleging, inter alia, that but for their negligent representation he would not have been convicted. (Although plaintiff's amended complaint states a second cause...