Opinion
November 15, 1991
Appeal from the Supreme Court, Erie County, Fudeman, J.
Present — Doerr, J.P., Denman, Green, Balio and Davis, JJ.
Judgment unanimously affirmed with costs. Memorandum: This appeal arises from an action in which plaintiffs (Sellers) alleged legal malpractice against their former attorneys for negligent representation in defense of an underlying defamation action entitled Rupert v. Sellers. The underlying action resulted from an extensive letter writing campaign by Sellers designed to discredit Rupert and thereby to obtain the insurance endorsement of the Monroe County Medical Society and other businesses which Rupert had insured. The jury returned a verdict in favor of Rupert, including an award of punitive damages, which was affirmed on appeal (see, Rupert v. Sellers, 65 A.D.2d 473, affd 50 N.Y.2d 881, cert denied 449 U.S. 901). In the instant legal malpractice action, Sellers alleged that defendants failed competently and professionally to prepare and present the defense in the defamation action.
The jury verdict in favor of defendants was not against the weight of the evidence. Plaintiffs failed to establish that defendants committed legal malpractice in any respect (see, Carmel v. Lunney, 70 N.Y.2d 169, 173; Servidone Constr. Corp. v Security Ins. Co., 64 N.Y.2d 419, 425). The court's charge was adequate and proper. In this regard, we note that Sellers' contention that the trial court refused to apply the proper legal standard for determining libel was not preserved for review because he did not object to the charge as given and, in fact, requested a charge which was substantially similar to the one given. Moreover, trial counsel cannot be faulted for not requesting a charge containing a legal standard which did not then apply. In any event, as this Court stated in the prior appeal, "there is evidence in the record sufficient to meet any predictable burden of proof, be it negligence, actual malice or some intermediate degree of fault" (Rupert v. Sellers, 65 A.D.2d 473, 475, supra). Plaintiffs' remaining contentions lack merit.