Opinion
2014-03-13
Patricia COHEN, Plaintiff–Respondent–Appellant, v. Gaytri D. KACHROO, etc., et al., Defendants–Appellants–Respondents.
Traub Lieberman Straus & Shrewsberry LLP, Hawthorne (Lisa L. Shrewsberry of counsel), appellants-respondents. Law Offices of Robert A. Roseman, New York (Robert A. Roseman of counsel), for respondent-appellant.
Traub Lieberman Straus & Shrewsberry LLP, Hawthorne (Lisa L. Shrewsberry of counsel), appellants-respondents. Law Offices of Robert A. Roseman, New York (Robert A. Roseman of counsel), for respondent-appellant.
ACOSTA, J.P., RENWICK, FEINMAN, CLARK, JJ.
Order, Supreme Court, New York County (Eileen A. Rakower, J.), entered February 28, 2013, which denied defendants' motion to dismiss the claims for breach of fiduciary duty, breach of the New York Rules of Professional Conduct, and breach of Judiciary Law § 487 and the claims for punitive damages, and granted the motion as to plaintiff's claim for legal malpractice, unanimously modified, on the law, to grant the motion as to the causes of action for breach of fiduciary duty and breach of the New York Rules of Professional Conduct, and otherwise affirmed, without costs.
Regarding the legal malpractice claim, plaintiff failed to allege that but for defendants' alleged omissions in their representation in the underlying actions, she would have prevailed in those actions ( Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 A.D.3d 267, 272, 780 N.Y.S.2d 593 [1st Dept.2004]; Golden v. Cascione, Chechanover & Purcigliotti, 286 A.D.2d 281, 729 N.Y.S.2d 140 [1st Dept.2001] ). To the extent that plaintiff alleges damages in the form of fees that she will incur by substitute counsel, she would have incurred such fees whether she was represented by defendants or other counsel. Thus, she cannot allege that defendants, by withdrawing from the underlying actions, proximately caused her to incur those fees. To the extent that substitute counsel might ultimately bill plaintiff for more legal fees than defendants would have, those claims seem too speculative to be ascertainable ( see Russo v. Feder, Kaszovitz, Isaacson, Weber, Skala & Bass, 301 A.D.2d 63, 67, 750 N.Y.S.2d 277 [1st Dept.2002] ).
To the extent that plaintiff seeks to allege malpractice based on a violation of the New York Rules of Professional Conduct, such an alleged violation does not, without more, support a malpractice claim ( Schafrann v. N.V. Famka, Inc., 14 A.D.3d 363, 787 N.Y.S.2d 315 [1st Dept.2005]; see also Sumo Container Sta. v. Evans, Orr, Pacelli, Norton & Laffan, 278 A.D.2d 169, 170–171, 719 N.Y.S.2d 223 [1st Dept.2000] ). Moreover, “[t]he violation of a disciplinary rule does not, without more, generate a cause of action” ( Schwartz v. Olshan Grundman Frome & Rosenzweig, 302 A.D.2d 193, 199, 753 N.Y.S.2d 482 [1st Dept.2003] ).
Plaintiff's cause of action alleging breach of fiduciary duty is dismissed as duplicative of the legal malpractice cause of action. Contrary to plaintiff's assertion, the breach of fiduciary duty claim alleged no new facts and sought the same damages as the legal malpractice claim ( Cobble Cr. Consulting, Inc. v. Sichenzia Ross Friedman Ference LLP, 110 A.D.3d 550, 551, 973 N.Y.S.2d 595 [1st Dept.2013]; Garnett v. Fox, Horan & Camerini, LLP, 82 A.D.3d 435, 436, 918 N.Y.S.2d 79 [1st Dept.2011] ).
The allegations that defendants were fully paid under the terms of the retainer agreement, but falsely represented in court that they sought to be relieved because they had not been paid, suffice to allege that defendants acted with intent to deceive the respective courts ( see e.g. Schindler v. Issler & Schrage, 262 A.D.2d 226, 692 N.Y.S.2d 361 [1st Dept.1999], lv. dismissed94 N.Y.2d 791, 700 N.Y.S.2d 422, 722 N.E.2d 502 [1999] ). In addition, plaintiff sufficiently alleged a chronic and extreme pattern of legal delinquency by averring that defendants fabricated certain charges, attempted to extract more money than agreed upon in the retainer, and threatened to abandon the matter if plaintiff did not execute an addendum to the retainer, to defendants' benefit ( see e.g. Kinberg v. Opinsky, 51 A.D.3d 548, 549, 859 N.Y.S.2d 129 [1st Dept.2008] ). The allegedly false representations in two courts, and the coercive threats to plaintiff in an attempt to elicit additional remuneration are sufficiently egregious to state a claim for punitive damages ( see Dobroshi v. Bank of Am., N.A., 65 A.D.3d 882, 884, 886 N.Y.S.2d 106 [1st Dept.2009], lv. dismissed 14 N.Y.3d 785, 899 N.Y.S.2d 117, 925 N.E.2d 919 [2010];Smith v. Lightning Bolt Prods., 861 F.2d 363, 372–373 [2d Cir.1988] ).