Lewis A. Kaplan, of the United States District Court for the Southern District of New *

York, sitting by designation.

08-3096-cv

McCord v. O’Neill

UNITED STATES COURT OF APPEALS

FOR THE SECOND CIRCUIT

SUMMARY ORDER

Rulings by summary order do not have precedential effect. Citation to a summary order filed on or after January

1, 2007, is permitted and is governed by Federal Rule of Appellate Procedure 32.1 and this court’s Local Rule

32.1.1. When citing a summary order in a document filed with this court, a party must cite either the Federal

Appendix or an electronic database (with the notation “summary order”). A party citing a summary order must

serve a copy of it on any party not represented by counsel.

1 At a stated term of the United States Court of Appeals for the Second Circuit, held at the

2 Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York, on

3 the 11 day of March, two thousand ten. th

4

5 PRESENT:

6

7 JOHN M. WALKER, JR.,

8 DEBRA ANN LIVINGSTON,

9 Circuit Judges,

10

11 LEWIS A. KAPLAN,*

12 District Judge.

13 

14

15 MARK A. MCCORD,

16 Plaintiff-Appellant,

17

18 -v.- No. 08-3096-cv

19 Summary Order

20

21 MICHAEL G. O’NEILL,

22 Defendant-Appellee,

23 

24

25 Mark A. McCord, pro se, Brooklyn, NY.

26

27 Scott E. Kossove, L’Abbate, Balkan, Colavita & Contini, L.L.P.,

28 Garden City, NY for Defendant-Appellee.

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2

1

2 Appeal from a judgment of the United States District Court for the Eastern District of New

3 York (Ross, J.).

4 UPON DUE CONSIDERATION IT IS HEREBY ORDERED, ADJUDGED, AND

5 DECREED that the judgment of the district court be AFFIRMED.

6 Plaintiff-Appellant Mark A. McCord, pro se, appeals the district court’s grant of Defendant7 Appellee Michael G. O’Neill’s motion for summary judgment, dismissing McCord’s claim for legal

8 malpractice arising from O’Neill’s representation of McCord in a prior employment discrimination

9 case, Hill v. Airborne Freight Corp., E.D.N.Y. Dkt. No. 98-cv-6249. We assume the parties’

10 familiarity with the underlying facts, the procedural history of the case, and the issues on appeal.

11 As an initial matter, to the extent McCord asserts on appeal that O’Neill is liable for legal

12 malpractice because of an alleged “conflict of interest,” we decline to consider this or any related

13 arguments, as McCord did not raise these issues below. See Singleton v. Wulff, 428 U.S. 106, 120-21

14 (1976) (recognizing the well established general rule that a court of appeals will not consider an issue

15 raised for the first time on appeal); see also Virgilio v. City of New York, 407 F.3d 105, 116 (2d Cir.

16 2005) (citing Westinghouse Credit Corp. v. D’Urso, 371 F.3d 96, 103 (2d Cir. 2004)). 

17 This Court reviews orders granting summary judgment de novo and focuses on whether the

18 district court properly concluded that there was no genuine issue as to any material fact and the

19 moving party was entitled to judgment as a matter of law. See Miller v. Wolpoff & Abramson,

20 L.L.P., 321 F.3d 292, 300 (2d Cir. 2003); Republic Nat’l Bank v. Delta Air Lines, 263 F.3d 42, 46

21 (2d Cir. 2001); Allstate Ins. Co. v. Mazzola, 175 F.3d 255, 258 (2d Cir. 1999). In determining

22 whether there are genuine issues of material fact, this Court is “required to resolve all ambiguities

23 and draw all permissible factual inferences in favor of the party against whom summary judgment
3

1 is sought.” Terry v. Ashcroft, 336 F.3d 128, 137 (2d Cir. 2003) (internal quotation marks omitted).

2 Construing all the facts in McCord’s favor, an independent review of the record shows that

3 the district court properly granted O’Neill’s motion for summary judgment. “To state a claim for

4 legal malpractice under New York law, a plaintiff must allege: (1) attorney negligence; (2) which

5 is the proximate cause of a loss; and (3) actual damages.” Achtman v. Kirby, McInerney & Squire,

6 LLP, 464 F.3d 328, 337 (2d Cir. 2006). Under this standard, “[a] complaint that essentially alleges

7 either an ‘error of judgment’ or a ‘selection of one among several reasonable courses of action’ fails

8 to state a claim for malpractice.” Id. (quoting Rosner v. Paley, 481 N.E. 2d 553, 554 (N.Y. 1985)).

9 And, in general, “an attorney may only be held liable for ‘ignorance of the rules of practice, failure

10 to comply with conditions precedent to suit, or for his neglect to prosecute or defend an action.’” Id.

11 (quoting Bernstein v. Oppenheim & Co., 554 N.Y.S.2d 487, 489-90 (N.Y. App. Div. 1st Dep’t

12 1990)). 

13 Here, McCord’s malpractice claim rested on the allegation that O’Neill’s failure to contact

14 Ron Lawrence, another employee of McCord’s former employer, as a possible witness constituted

15 negligence, and that, had Lawrence been a witness in his case, the district court would not have

16 granted Airborne’s motion for judgment of a matter of law and dismissed McCord’s discrimination

17 claims. O’Neill met his initial burden of demonstrating that his decision was a reasonable strategic

18 choice byshowing that the only information regarding Lawrence in McCord’s possession at the time

19 was Lawrence’s “Summary of Disciplinary/Attendance History.” This document showed that

20 Lawrence, a Caucasian, had received much the same disciplinary treatment as McCord, undermining

21 McCord’s contention that calling Lawrence would have enabled him to demonstrate that his

22 employer treated him less favorably than a similarly situated employee outside of his protected
4

1 group. See Mandell v. County of Suffolk, 316 F.3d 368, 379 (2d Cir. 2003). As the district court

2 correctly observed, McCord adduced no evidence in response suggesting that O’Neill’s failure to

3 contact Lawrence was negligent, or that this decision could have proximately resulted in the court’s

4 unfavorable decision in Hill.

5 We have considered all of McCord’s other arguments and find them to be without merit. For

6 the foregoing reasons, the judgment of the district court is hereby AFFIRMED.

7

8 FOR THE COURT:

9 Catherine O’Hagan Wolfe, Clerk

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