No Failure To Communicate

The New York Appellate Division for the Second Judicial Department affirmed findings and conclusions favorable to the defendants in a legal malpractice action.

The plaintiff’s under lying claim was for personal injuries sustained in a fall.

During the trial of the underlying injury action, the personal injury defendants extended settlement offers in the sums of $4 million, $8 million, $9.25 million, and $10 million, respectively, each of which the plaintiffs declined upon the defendants’ advice. On the evening after the parties had rested, and prior to summations, the personal injury defendants extended a written settlement offer in the sum of $12 million, along with a structured settlement plan which would yield greater sums if invested as proposed (hereinafter the $12 million offer).

Yatto, who represented the plaintiffs at trial, testified that he communicated the $12 million offer to the plaintiffs and handed Mrs. Doviak the written document containing the offer (hereinafter the offer document) to review but that, the following morning, Mrs. Doviak explicitly rejected the $12 million offer and handed the offer document back to him. The plaintiffs, on the other hand, testified that they were never informed of the $12 million offer and that, had they been informed of it, they would have accepted it.

The jury in the personal injury action returned a verdict in favor of the plaintiffs in the sum of approximately $3.7 million. The defendants successfully sought additur from the Supreme Court, Ulster County, which increased the verdict to the sum of approximately $6.8 million. In November 2007, after the successful additur motion, the plaintiffs discharged the defendants and engaged successor counsel. Successor counsel obtained further additur from the Appellate Division, Third Department, for a total verdict in the sum of approximately $9.3 million (see Doviak v Lowe’s Home Ctrs., Inc., 63 AD3d 1348).

The plaintiffs thereafter commenced this action against the defendants, alleging, inter alia, that the defendants committed legal malpractice by failing to communicate the $12 million offer to them. The plaintiffs also alleged a variety of other legal errors and sought, inter alia, a finding that they had discharged the defendants for cause and that, accordingly, the defendants were not entitled to recover fees in the personal injury action.

During Mrs. Doviak’s deposition in this action, the defendants’ counsel handed her the original offer document. The plaintiffs subsequently moved to impose sanctions on the defendants on the ground that the defendants had failed to preserve the offer document for fingerprint analysis and had made such analysis impossible. The plaintiffs maintained that, had the offer document been analyzed, it would have revealed that Mrs. Doviak’s fingerprints were not on it and, therefore, would have been evidence that the defendants had not delivered the $12 million offer to them. The Supreme Court denied the plaintiffs’ motion.

The jury concluded that the offer had been communicated.

As to the fingerprint claim

Here, the record supports the Supreme Court’s conclusion that the plaintiffs failed to demonstrate that the defendants intentionally or negligently destroyed fingerprint evidence which was critical to their case. The plaintiffs failed to demonstrate that they requested that the offer document be tested for fingerprints, or that it be preserved for forensic testing prior to Mrs. Doviak’s deposition, or otherwise informed the defendants of their desire to conduct fingerprint analysis. The plaintiffs’ boilerplate demand during discovery that they be permitted to examine original documents on request does not satisfy this requirement, nor is it reasonable to contend that the defendants should have anticipated the plaintiffs’ desire for forensic testing of the offer document (cf. Standard Fire Ins. Co. v Federal Pac. Elec. Co., 14 AD3d 213, 217). Thus, the plaintiffs failed to demonstrate that, in handing the original document to Mrs. Doviak at her deposition, the defendants intentionally or negligently destroyed potential forensic evidence (see Morales v City of New York, 130 AD3d at 793; Lentini v Weschler, 120 AD3d at 1201). In any event, the plaintiffs failed to demonstrate that, by failing to preserve the offer document for forensic testing, the defendants had fatally compromised the plaintiffs’ ability to prove their claims (see Morales v City of New York, 130 AD3d at 793; Lentini v Weschler, 120 AD3d at 1201). Therefore, the court providently exercised its discretion in denying the plaintiffs’ motion for sanctions for spoliation.

(Mike Frisch)