    10-2775-cv
    Klein v. Talkin, Muccigrosso and Roberts, L.L.P.



                                  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.

            At a stated term of the United States Court of Appeals for the Second Circuit, held at the
    Daniel Patrick Moynihan United States Courthouse, 500 Pearl Street, in the City of New York,
    on the 18th day of March, two thousand eleven.

    PRESENT:
                RALPH K. WINTER,
                JOSEPH M. McLAUGHLIN,
                PETER W. HALL,
                      Circuit Judges.
    ____________________________________________________________

    Eric A. Klein,
                     Plaintiff-Appellant,

                     -v.-                                                        10-2775-cv

    Talkin, Muccigrosso and Roberts, L.L.P.,
                  Defendant-Appellee.
    ___________________________________________________________

    FOR APPELLANT:                    ERIC A. KLEIN, pro se, River Vale, New Jersey.

    FOR APPELLEE:                     SANFORD TALKIN, Talkin, Muccigrosso & Roberts, LLP, New
                                      York, New York.

            Plaintiff-Appellant Eric A. Klein, pro se, appeals from the July 13, 2010 judgment of the

    United States District Court for the Southern District of New York (Swain, J.) granting the



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Appellee’s motion to dismiss Klein’s malpractice claims.1 UPON DUE CONSIDERATION, it

is hereby ORDERED, ADJUDGED, AND DECREED that the district court judgment is

AFFIRMED.

       This Court reviews the dismissal of a complaint pursuant to Rule 12(b)(6) de novo,

construing the complaint liberally and accepting all factual allegations in the complaint as true.

See Chambers v. Time Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002). This Court reviews the

denial of a motion for appointment of counsel for abuse of discretion. See Carpenter v. Republic

of Chile, 610 F.3d 776, 780 (2d Cir. 2010).

       “The elements of legal malpractice under New York law are (1) a duty, (2) a breach of

the duty, and (3) proof that the actual damages were proximately caused by the breach of the

duty.” Ocean Ships, Inc. v. Stiles, 315 F.3d 111, 117 (2d Cir. 2002) (internal quotation marks

and citations omitted). To raise a legal malpractice claim in New York, arising from a criminal

proceeding, the “plaintiff must allege his innocence or a colorable claim of innocence of the

underlying offense, for so long as the determination of his guilt of that offense remains

undisturbed, no cause of action will lie.” Carmel v. Lunney, 70 N.Y.2d 169, 173 (1987) (internal

quotation omitted). New York courts have not limited this requirement to malpractice claims

relating to the conviction, but, rather, have held that “[t]he fact that respondent’s alleged

negligence did not contribute to petitioner’s criminal conviction is irrelevant.” Swain v. County

of Albany, 268 A.D.2d 747, 748 (3d Dep’t 2000); see Rosado v. Legal Aid Society, 12 A.D.3d




           1
            We assume the parties’ familiarity with the underlying facts and the procedural
   history of the case.

                                                  2
356, 357 (2d Dep’t 2004) (“[P]ublic policy prevents the maintenance of a malpractice action

where the plaintiff cannot assert his innocence”).

       Thus, there is no merit to Klein’s contentions that his malpractice claims related to his

sentencing are not barred by Carmel. See, e.g., Biegen v. Paul K. Rooney, P.C., 269 A.D.2d 264,

265 (1st Dep’t 2000) (finding claim that attorney provided erroneous advice about length of

sentence implicated Carmel, “notwithstanding that the [claim] is not asserted as a collateral

attack on the [conviction]”). The district court also properly dismissed Klein’s malpractice claim

based on Talkin, Muccigrosso and Roberts, L.L.P’s failure to contest the post-judgment lien.

The only damages Klein alleged that he suffered due to appellee’s failure to contest the lien were

the outstanding amount of restitution, which was due regardless of the lien. See Senise v.

Mackasek, 227 A.D.2d 184, 185 (1st Dep’t 1996) (affirming dismissal of malpractice claim

based on attorney’s failure to “properly raise and fully argue on appeal the propriety of the trial

court order obligating plaintiff to make restitution” in a civil case because, given that “the

damages sustained by plaintiff in that action were proximately caused by plaintiff’s own conduct

. . . which authorized the trial court to require restitution,” the attorney’s actions were not the

cause of the damages). Additionally, Klein has failed to allege that appellee’s failure to contest

the lien was the cause of any damages, as the existence of the lien did not require Klein to pay

the full amount of restitution. Moreover, although the premise of Klein’s claim is that the

appellee should have moved to vacate the lien and, instead, offered other property as security, at

the time of the entry of the judgment, the Government acquired a lien on all of Klein’s property.

See 18 U.S.C. § 3613(c); Lavin v. United States, 299 F.3d 123, 127 (2d Cir. 2002).




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       The district court did not abuse its discretion by denying Klein appointment of counsel.

Klein never formally moved for counsel and, in any event, he has not demonstrated that

appointment of counsel was warranted, given that the legal issues in this case are not complex

and, as a former attorney, Klein was able to present his arguments effectively. See Hodge v.

Police Officers, 802 F.2d 58, 61-62 (2d Cir. 1986) (setting forth factors courts should consider in

determining whether to appoint counsel).

       We have considered all of the appellant’s other arguments and find them to be without

merit.2 Accordingly, the judgment of the district court is AFFIRMED.


                                                     FOR THE COURT:
                                                     Catherine O’Hagan Wolfe, Clerk




           2
             On appeal Klein also alleges that the appellee committed legal malpractice by
   failing to enforce an indemnity agreement with his co-defendant, which, according to Klein,
   would have required the co-defendant to pay Klein’s legal fees. As Klein failed to include
   such allegations in his second amended complaint before the district court, see ROA doc. 43,
   he is barred from raising the issue at this point in time.


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