Opinion
11-09-2017
Lauren BRENNER, et al., Plaintiffs–Appellants, v. REISS EISENPRESS, LLP, et al., Defendants–Respondents.
Andrew Lavoot Bluestone, New York, for appellants. Kaufman, Dolowich & Voluck, LLP, Woodbury (Brett A. Scher of counsel), for respondents.
Andrew Lavoot Bluestone, New York, for appellants.
Kaufman, Dolowich & Voluck, LLP, Woodbury (Brett A. Scher of counsel), for respondents.
Order, Supreme Court, New York County (Nancy M. Bannon, J.), entered on or about August 11, 2016, which granted defendants' motion to dismiss the complaint, unanimously modified, on the law, the motion denied with respect to the breach of contract and breach of fiduciary duty claims, and otherwise affirmed, without costs.
In this action commenced by plaintiffs against defendants based on defendants' representation of plaintiffs in an underlying federal court action, dismissal of the legal malpractice claim was proper since the claim rested on retrospective complaints about the outcome of defendants' strategic choices and tactics, without any facts cited to support a claim that the choices were unreasonable (see Kassel v. Donohue, 127 A.D.3d 674, 6 N.Y.S.3d 916 [1st Dept.2015], lv. dismissed 26 N.Y.3d 940, 17 N.Y.S.3d 57, 38 N.E.3d 800 [2015] ; Dweck Law Firm v. Mann, 283 A.D.2d 292, 727 N.Y.S.2d 58 [1st Dept.2001] ). The failure to anticipate the trial court's evidentiary rulings with respect to the expert report does not establish negligence (see Leder v. Spiegel, 9 N.Y.3d 836, 837, 840 N.Y.S.2d 888, 872 N.E.2d 1194 [2007], cert. denied 552 U.S. 1257, 128 S.Ct. 1696, 170 L.Ed.2d 354 [2008] ).
However, the breach of contract and breach of fiduciary duty claims should be reinstated. They are based on billing issues and are not duplicative of the claims regarding the alleged mishandling of the trial (see Ulico Cas. Co. v. Wilson, Elser, Moskowitz, Edelman & Dicker, 56 A.D.3d 1, 8, 865 N.Y.S.2d 14 [1st Dept.2008] ).
The court correctly concluded that the action was timely based on the continuous representation doctrine. It was undisputed that defendants' filed a memorandum of law on plaintiffs' behalf on November 7, 2011, which was less than three years prior to the filing of the complaint.
MANZANET–DANIELS, J.P., ANDRIAS, GISCHE, KERN, SINGH, JJ., concur.