Sellers v. Jaeckle

Appellate Division of the Supreme Court of New York

Sellers v. Jaeckle

177 A.D.2d 1035

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

DecidedNovember 15, 1991

StatusPublished

This text of 177 A.D.2d 1035 (Sellers v. Jaeckle) 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

Sellers v. Jaeckle, 177 A.D.2d 1035 (N.Y. Ct. App. 1991).

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Opinion

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 AD2d 473, affd 50 NY2d 881, cert denied 449 US 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 NY2d 169, 173; Servidone Constr. Corp. v Security Ins. Co., 64 NY2d 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 AD2d 473, 475, supra). Plaintiffs’ remaining contentions lack merit. (Appeal from Judgment of Supreme Court, Erie County, Fudeman, J.—Legal Malpractice.) Present—Doerr, J. P., Denman, Green, Balio and Davis, JJ.

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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 AD2d 473, affd 50 NY2d 881, cert denied 449 US 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 NY2d 169, 173; Servidone Constr. Corp. v Security Ins. Co., 64 NY2d 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 AD2d 473, 475, supra). Plaintiffs’ remaining contentions lack merit. (Appeal from Judgment of Supreme Court, Erie County, Fudeman, J.—Legal Malpractice.) Present—Doerr, J. P., Denman, Green, Balio and Davis, JJ.

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177 A.D.2d 1035, Counsel Stack Legal Research, https://law.counselstack.com/opinion/sellers-v-jaeckle-nyappdiv-1991.

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