Hand v. Silberman

Appellate Division of the Supreme Court of New York

Hand v. Silberman

15 A.D.3d 167, 789 N.Y.S.2d 26, 2005 N.Y. App. Div. LEXIS 828

CourtAppellate Division of the Supreme Court of the State of New York

DecidedFebruary 1, 2005

StatusPublished

Cited by10 cases

This text of 15 A.D.3d 167 (Hand v. Silberman) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hand v. Silberman, 15 A.D.3d 167, 789 N.Y.S.2d 26, 2005 N.Y. App. Div. LEXIS 828 (N.Y. Ct. App. 2005).

Pincite

Opinion

Order, Supreme Court, New York County (Richard F. Braun, J.), entered September 8, 2003, which granted defendants’ motion to dismiss the complaint for failure to state a cause of action and based on documentary evidence, unanimously affirmed, without costs.

Plaintiff failed to demonstrate, in this legal malpractice action, that she would have been successful in the underlying administrative proceeding but for the alleged negligence of defendants (Davis v Klein, 88 NY2d 1008 [1996]). Neither an error in judgment nor in choosing a reasonable course of action constitutes malpractice (see Rosner v Paley, 65 NY2d 736, 738 [168]*168[1985]). The stipulation entered into, that plaintiff’s prior employer had “reasonable suspicion” that she was using alcohol or drugs and ordered that she be tested, was a strategy to avoid emphasis on plaintiffs pre-test conduct and to concentrate on her claimed reasons for failing to submit to the tests. Not only did the administrative judge not consider the stipulation or plaintiffs pre-test conduct to be a central issue at the hearing, but testimony was presented by witnesses as to plaintiffs pretest conduct, rendering the stipulation superfluous.

We have considered plaintiffs remaining arguments and find them to be without merit. Concur — Mazzarelli, J.E, Saxe, Friedman, Sullivan and Williams, JJ.

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Order, Supreme Court, New York County (Richard F. Braun, J.), entered September 8, 2003, which granted defendants’ motion to dismiss the complaint for failure to state a cause of action and based on documentary evidence, unanimously affirmed, without costs.

Plaintiff failed to demonstrate, in this legal malpractice action, that she would have been successful in the underlying administrative proceeding but for the alleged negligence of defendants (Davis v Klein, 88 NY2d 1008 [1996]). Neither an error in judgment nor in choosing a reasonable course of action constitutes malpractice (see Rosner v Paley, 65 NY2d 736, 738 [168]*168[1985]). The stipulation entered into, that plaintiff’s prior employer had “reasonable suspicion” that she was using alcohol or drugs and ordered that she be tested, was a strategy to avoid emphasis on plaintiffs pre-test conduct and to concentrate on her claimed reasons for failing to submit to the tests. Not only did the administrative judge not consider the stipulation or plaintiffs pre-test conduct to be a central issue at the hearing, but testimony was presented by witnesses as to plaintiffs pretest conduct, rendering the stipulation superfluous.

We have considered plaintiffs remaining arguments and find them to be without merit. Concur — Mazzarelli, J.E, Saxe, Friedman, Sullivan and Williams, JJ.

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Bluebook (online)

15 A.D.3d 167, 789 N.Y.S.2d 26, 2005 N.Y. App. Div. LEXIS 828, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hand-v-silberman-nyappdiv-2005.

Opinion

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