Summary
noting that NYSCEF Doc No. 33 refutes defendants’ claim that Morgan Stanley would have changed the language in the U-5 forms in a more favorable way had plaintiff offered competent legal representation
Summary of this case from Conway v. KaplanOpinion
9558 9558A M–2347 Index 158060/17
06-06-2019
Adam KAPLAN, et al., Plaintiffs–Appellants, v. CONWAY AND CONWAY, et al., Defendants–Respondents.
Law Office of Daniel L. Abrams, PLLC, New York (Daniel L. Abrams of counsel), for appellants. Conway & Conway, New York (William W. Bergesch of counsel), for respondents.
Law Office of Daniel L. Abrams, PLLC, New York (Daniel L. Abrams of counsel), for appellants.
Conway & Conway, New York (William W. Bergesch of counsel), for respondents.
Friedman, J.P., Tom, Kapnick, Kahn, JJ.
Judgment, Supreme Court, New York County (Frank P. Nervo, J.), entered September 17, 2018, dismissing the complaint with prejudice, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered September 6, 2018, which granted defendants' motion to dismiss pursuant to CPLR 3211(a)(7), unanimously dismissed, without costs, as subsumed in the appeal from the judgment.
A claim for legal malpractice requires that a plaintiff allege facts that, if proven at trial, would demonstrate that the attorney "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages" ( Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385 [2007] [internal quotation marks and citation omitted]; see Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 A.D.3d 267, 271–272, 780 N.Y.S.2d 593 (1st Dept. 2004).
The motion court properly granted defendants' motion to dismiss. The complaint alleged that defendants committed legal malpractice by failing to timely advocate for a "formal closure" of a "sham" internal investigation instigated by plaintiffs' employer, or to secure "more favorable language" in the FINRA U–5 Forms that were filed upon plaintiffs' voluntary resignation. As a result of defendants' alleged negligence, plaintiffs claim that they were subject to a FINRA investigation and "reputational damage." Given the vague, speculative, and conclusory nature of these allegations, plaintiffs failed to allege facts that "fit into any cognizable legal theory" (see Nonnon v. City of New York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720 [2007], quoting Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] [internal quotation marks omitted] ).
Moreover, emails submitted by defendants show that the law firm did advocate for plaintiffs' employer to include language on the U–5 Forms indicating that any allegations against plaintiffs were unsubstantiated, and plaintiffs' employer refused, calling such language a "non-starter." Defendants also drafted a "Broker Comment," which would have provided plaintiffs' rebuttal to the negative information included on their U–5 Forms, but, according to defendants, plaintiffs would not discuss or approve the comment. It is undisputed that, prior to their voluntary resignation, plaintiffs were on administrative leave and already suffering damages in the form of loss of business and reputational damage. Accordingly, plaintiffs have no cause of action to recover damages for legal malpractice as they cannot demonstrate that defendants were negligent in their representation, or that such negligence proximately caused the alleged damages (see Rudolf v. Shayne, supra ; Weil v. Fashion Boutique, supra ).
Contrary to plaintiffs' contention, the motion court properly considered the emails submitted by defendants in dismissing the complaint ( Basis Yield Alpha Fund [Master] v. Goldman Sachs Group, Inc., 115 A.D.3d 128, 135, 980 N.Y.S.2d 21 [1st Dept. 2014] ). By considering this evidentiary material, the standard morphed from whether plaintiffs stated a cause of action to whether they had one ( id. ). Thus, to the extent the motion court decided the motion on the merits, it properly dismissed the complaint on the merits (cf. Komolov v. Segal, 96 A.D.3d 513, 947 N.Y.S.2d 14 [1st Dept. 2012] ).