. “ ‘[A]bsent fraud, collusion, malicious acts or other special circumstances, an attorney is not liable to third parties, not in privity, for harm caused by professional negligence’ ” ( Conti v. Polizzotto, 243 A.D.2d 672, 672, 663 N.Y.S.2d 293, quoting Estate of Spivey v. Pulley, 138 A.D.2d 563, 564, 526 N.Y.S.2d 145;see Keness v. Feldman, Kramer & Monaco, P.C., 105 A.D.3d 812, 813, 963 N.Y.S.2d 313;Jacobs v. Kay, 50 A.D.3d 526, 526–527, 857 N.Y.S.2d 81;Chinello v. Nixon, Hargrave, Devans & Doyle, LLP, 15 A.D.3d 894, 895, 788 N.Y.S.2d 750).
The Court points out that, in the minority of jurisdictions that do not permit standing in these cases, standing is likewise not permitted in the attorney/will-beneficiary scenario. In Conti v. Polizzot-to, 243 A.D.2d 672, 663 N.Y.S.2d 293 (1997), the New York Supreme Court of Appeals held that beneficiaries of a will failed to establish the requisite attorney-client relationship or privity and, therefore, lacked standing. The Court held that the will beneficiaries failed to show the existence of the necessary relationship to sustain the action for legal malpractice.
This case is closer to California Pub. Employees' Retirement Sys. v. Shearman Sterling, 95 N.Y.2d 427, 434 (2000) ("Calpers") (concluding that there is no privity between the law firm and loan assignee where the only contact between a law firm and assignee was the firm's letter to assignee's counsel transmitting document drafts); see also Conti v. Polizzotto, 663 N.Y.S.2d 293, 294 (1994) (dismissing negligence claim against law firm where "plaintiffs have failed to allege specific facts upon which the existence of an attorney-client relationship or privity between the parties could be inferred"); United Bank of Kuwait PLC v. Enventure Energy Enhanced Oil Recovery Assocs. — Charco Redondo Butane, 755 F. Supp. 1195, 1200 (S.D.N.Y. 1989) (holding that absence of privity of contract precluded attorney from liability to bank that loaned money to client in reliance on alleged negligent misrepresentation in opinion letter); Council Commerce Corp. v. Schwartz, Sachs Kamhi, P.C., 534 N.Y.S.2d 1 (1988) (holding law firm not liable for negligence in preparing a letter in the course of representing its own clients); Estate of Ginor v. Landsberg, 960 F. Supp. 661, 672 (S.D.N.Y. 1996), aff'd, 159 F.3d 1346 (2d Cir. 1998) (Dismissing claims for malpractice and breach of fiduciary obligation since law firm represented a partnership and its general partner and did not represent the p
It is a firmly established rule in New York that where there is no privity of contract, a plaintiff may not sue an attorney for simple negligence, absent proof of fraud, collusion, malicious acts or other special circumstances. United Bank of Kuwait PLC v. Enventure Energy, 755 F. Supp. 1195, 1200-1201 (S.D.N.Y. 1989); Scomello v. Caronia, 232 A.D.2d 625, 648 N.Y.S.2d 688 (2d Dep't 1996) (plaintiff could not sue for legal malpractice on behalf of her children, where children were not in privity with plaintiff's attorney); Michalic by Nakovics v. Klat, 128 A.D.2d 505, 512 N.Y.S.2d 436 (2d Dep't 1987) (non-client mother could not sue father's attorney for mere negligence in handling custody litigation); Viscardi v. Lerner, 125 A.D.2d 662, 510 N.Y.S.2d 183 (2d Dep't 1986) (intended beneficiaries of will could not sue attorney who drafted will); Conti v. Polizzotto, 169 Misc.2d 354, 646 N.Y.S.2d 259 (S.Ct. Kings Co. 1996), aff'd, 663 N.Y.S.2d 293 (2d Dep't 1997) (to sustain cause of action for legal malpractice sounding in negligence, privity must exist between plaintiffs and defendant). In the present case, plaintiffs allege that Lalime acted negligently when he caused their escrowed funds to be transferred to the control of others.
4 Ronald E. Mallen Jeffrey M. Smith, Legal Malpractice § 32.4, at 734 (5th ed. 2000) (footnote collecting cases omitted).But see Peterson v. Anderson, 719 So.2d 216, 218 (Ala.Civ.App. 1997) ("The law in Alabama is that `[a] person authorized to practice law owes no duty except that arising from contract or from a gratuitous undertaking.'" (citation omitted)); Lilyhorn v. Dier, 214 Neb. 728, 730, 335 N.W.2d 554, 555 (1983) (finding beneficiary lacked standing to bring malpractice action against lawyer who drafted will because, "as a general rule the duty to exercise reasonable care and skill which a lawyer owes his client ordinarily does not extend to third parties."); Conti v. Polizzotto, 243 A.D.2d 672, 672, 663 N.Y.S.2d 293, 294 (N.Y.App.Div. 1997) (dismissing legal malpractice action brought by will beneficiaries for failure to state a claim, and declaring that "`[t]he well established rule in New York with respect to attorney malpractice is that absent fraud, collusion, malicious acts or other special circumstances, an attorney is not liable to third parties, not in privity, for harm caused by professional negligence'" (citations omitted)); Simon v. Zipperstein, 32 Ohio St.3d 74, 77, 512 N.E.2d 636, 638 (1987) (finding beneficiary of will could not maintain a malpractice action against attorney who drafted will based upon rule that "`[a]n attorney is immune from liability to third persons arising from his performance as an attorney in good faith on behalf of, and with the knowledge of his client, unless such third person is in privity with the client or the attorney acts maliciously'" (citation omitted) (alteration in original)); Guest v. Cochran, 993 S.W.2d 397, 406 (Tex.App. 1999) (stating "[t]he Texas Supreme Court has expr
Franko v. Mitchell, 762 P.2d 1345 (Ariz.Ct.App. 1988). [¶ 22] Only New York, Texas, Ohio and Nebraska continue to hold there is no recovery for nonclients. See, for example, Conti v. Polizzotto, 243 A.D.2d 672 (NY App. Div. 1997); Barcelo v. Elliot, 923 S.W.2d 575 (Tex. 1996); Simon v. Zipperstein, 512 N.E.2d 636 (Ohio 1987); and St. Mary's Church of Schuyler v. Tomek, 325 N.W.2d 164 (Neb. 1982). Weighing whether to adopt such a duty, the South Dakota court explained the disinclination to allow a nonclient to sue an attorney for malpractice:
; Copenhaver v. Rogers, 238 Va. 361, 384 S.E.2d 593, 597-98 (Va. 1989) [Grandchildren, remaindermen under grandparents' testamentary trust, were precluded from bringing a legal malpractice action in tort for negligent performance of legal services, absent privity, or an intended third-party beneficiary claim absent allegations that they were the intended beneficiaries of contract.]; Simon v. Zipperstein, 32 Ohio St.3d 74, 512 N.E.2d 636, 638 (1987) [Will beneficiary was not in privity with attorney preparing will and thus did not have standing.];Lilyhorn v. Dier, 214 Neb. 728, 335 N.W.2d 554, 555 (1983)[Attorney's duty does not extend to heir who was not client]; St. Mary's Church of Schuyler v. Tomek, 212 Neb. 728, 325 N.W.2d 164, 165 (1982) [Attorney who prepared will had no duty to purported beneficiaries of the will.];Spivey v. Pully, 138 A.D.2d 563, 526 N.Y.S.2d 145, 146 (1998)[Privity of contract is lacking.]; Conti v. Polizzotto, 243 A.D.2d 672, 663 N.Y.S.2d 293 (1997)[Beneficiaries are not in privity with will drafting attorney.]; Wright v. Gundersen, 956 S.W.2d 43 (Tex.App. 1996)[Attorney-client relationship did not exist between attorney and testator's daughter, as required to bring negligence claim against attorney and daughter lacked standing to assert a breach of contract claim against attorney.].
A motion to dismiss pursuant to CPLR 3211(a)(1) on the ground that the action is barred by documentary evidence "may be appropriately granted only where the documentary evidence utterly refutes plaintiff's factual allegations, conclusively establishing a defense as a matter of law" ( Goshen v. Mutual Life Ins. Co. of N.Y. , 98 N.Y.2d 314, 326, 746 N.Y.S.2d 858, 774 N.E.2d 1190 ; seeLeon v. Martinez , 84 N.Y.2d at 88, 614 N.Y.S.2d 972, 638 N.E.2d 511 ). Absent fraud, collusion, malicious acts, or other special circumstances, an attorney is not liable to third parties not in privity, or near-privity, for harm caused by professional negligence (seeAG Capital Funding Partners, L.P. v. State St. Bank & Trust Co. , 5 N.Y.3d 582, 595, 808 N.Y.S.2d 573, 842 N.E.2d 471 ; Fredriksen v. Fredriksen , 30 A.D.3d 370, 372, 817 N.Y.S.2d 320 ; Rovello v. Klein , 304 A.D.2d 638, 757 N.Y.S.2d 496 ; Conti v. Polizzotto , 243 A.D.2d 672, 663 N.Y.S.2d 293 ). Here, even accepting the facts alleged in the complaint as true, the complaint fails to allege the existence of an attorney-client relationship, privity, or a relationship that otherwise closely resembles privity between the plaintiffs and Leavitt (seeDeMartino v. Golden , 150 A.D.3d 1200, 1201, 52 N.Y.S.3d 892 ; Fredriksen v. Fredriksen , 30 A.D.3d at 371–372, 817 N.Y.S.2d 320 ; Goldfarb v. Schwartz , 26 A.D.3d 462, 463, 811 N.Y.S.2d 414 ; Rovello v. Klein , 304 A.D.2d at 638–639, 757 N.Y.S.2d 496 ).
Affording the complaint a liberal construction, accepting the facts alleged therein as true, and according DeMartino the benefit of every possible favorable inference (see Leon v Martinez, 84 NY2d 83, 87-88), the complaint fails to plead specific facts from which it can be inferred that DeMartino was in an attorney-client or fiduciary relationship, privity, or a relationship that otherwise closely resembles privity with the defendants, who were retained to represent DeMartino Building Co., Inc., and 150 Centerville, LLC, in the underlying action. Accordingly, the court properly directed dismissal pursuant to CPLR 3211(a)(7) of the causes of action alleging legal malpractice and breach of fiduciary duty insofar as asserted by DeMartino (see Fredriksen v Fredriksen, 30 AD3d at 371; Conti v Polizzotto, 243 AD2d 672, 673).
Plaintiff further alleges that he did not receive his share of the award made with respect to decedent's derivative claim in the medical malpractice action. Such allegations are insufficient to establish that plaintiff had an attorney-client relationship with defendants or to otherwise place him “within the ambit of the exception to the privity requirement” (Fredriksen v. Fredriksen, 30 A.D.3d 370, 372, 817 N.Y.S.2d 320 [2006] ; see Estate of Schneider v. Finmann, 15 N.Y.3d at 309–310, 907 N.Y.S.2d 119, 933 N.E.2d 718 ; Conti v. Polizzotto, 243 A.D.2d 672, 672–673, 663 N.Y.S.2d 293 [1997] ). Absent an attorney-client relationship, plaintiff's legal malpractice claim was properly dismissed.