PLATER v. HOFFMANN (2000)

Appeal from an order of the Supreme Court (O'Brien III, J.), entered December 8, 1999 in Cortland County, which, inter alia, granted defendant's cross motion for summary judgment dismissing the complaint.

In January 1995, defendant was assigned to represent plaintiff in a criminal action in which plaintiff ultimately was indicted and charged with assault in the second degree (two counts) and burglary in the first degree.   Following a jury trial, plaintiff was convicted on all counts and sentenced accordingly.   This Court subsequently affirmed plaintiff's conviction in January 1997 (People v. Plater, 235 A.D.2d 597, 652 N.Y.S.2d 636, lv. denied 89 N.Y.2d 1039, 659 N.Y.S.2d 870, 681 N.E.2d 1317).

Thereafter, in September 1999, plaintiff commenced this action for legal malpractice alleging that defendant had not properly represented his interests during the course of the underlying criminal action.   Following joinder of issue, plaintiff moved for summary judgment and defendant cross-moved for similar relief.   Supreme Court denied plaintiff's motion and granted defendant's cross motion, prompting this appeal.

 We affirm.   The case law makes clear that no cause of action for legal malpractice stemming from negligent representation in a criminal action will lie where, as here, the determination of the client's guilt remains undisturbed (see, Carmel v. Lunney, 70 N.Y.2d 169, 171, 518 N.Y.S.2d 605, 511 N.E.2d 1126;  Matter of Swain v. County of Albany, 268 A.D.2d 747, 748, 702 N.Y.S.2d 175, lv. denied 94 N.Y.2d 764, 708 N.Y.S.2d 52, 729 N.E.2d 709;  King v. Albany County Pub. Defender's Off., 255 A.D.2d 770, 770-771, 680 N.Y.S.2d 289, lv. denied 93 N.Y.2d 801, 687 N.Y.S.2d 625, 710 N.E.2d 272;  Pfeiffer v. Hoffman, 251 A.D.2d 94, 674 N.Y.S.2d 32).   Stated another way, plaintiff's failure to successfully challenge his criminal conviction precludes him from pleading and proving his innocence;  he has, therefore, failed to state a cause of action for legal malpractice against defendant (see, Gill v. Blau, 234 A.D.2d 506, 507, 651 N.Y.S.2d 182;  Doyle v. Ruskin, 230 A.D.2d 888, 646 N.Y.S.2d 889, appeal dismissed 90 N.Y.2d 883, 661 N.Y.S.2d 826, 684 N.E.2d 275).   Plaintiff's remaining arguments have been examined and found to be lacking in merit.

ORDERED that the order is affirmed, with costs.

CREW III, J.P.

PETERS, MUGGLIN, ROSE and LAHTINEN, JJ., concur.