Summary
holding that a plaintiff must "show with sufficient certainty that he would have been able to settle . . . and thereby have avoided or reduced his costs" in order to state a claim for malpractice
Summary of this case from Cohen Lans LLP v. NasemanOpinion
2013-11-12
David H. ENGELKE, Plaintiff–Appellant, v. BROWN RUDNICK BERLACK ISRAELS LLP, Defendant–Respondent.
Greenberg Freeman LLP, New York (Michael A. Freeman of counsel), and Trenam, Kemker, PA, Tampa, FL (John D. Goldsmith of the bar of the State of Florida, admitted pro hac vice, of counsel), for appellant. LeClair Ryan, New York (Ronald S. Herzog of counsel), for respondent.
Greenberg Freeman LLP, New York (Michael A. Freeman of counsel), and Trenam, Kemker, PA, Tampa, FL (John D. Goldsmith of the bar of the State of Florida, admitted pro hac vice, of counsel), for appellant. LeClair Ryan, New York (Ronald S. Herzog of counsel), for respondent.
TOM, J.P., ANDRIAS, FRIEDMAN, FREEDMAN, CLARK, JJ.
Orders, Supreme Court, New York County (Cynthia S. Kern, J.), entered April 17, 2012, which granted defendant's motion for summary judgment dismissing the complaint, and denied plaintiff's motion to strike defendant's answer pursuant to CPLR 3126 or, in the alternative, for partial summary judgment dismissing an affirmative defense of general release, unanimously affirmed, with costs.
The motion court properly dismissed the claim of legal malpractice. Even if plaintiff established the requisite conflict based on the existence of a prior attorney-client relationship, which relationship the parties do not dispute, plaintiff failed to establish that he incurred any damages attributable to defendant's breach of duty (Kodsi v. Gee, 100 A.D.3d 437, 438, 954 N.Y.S.2d 16 [1st Dept.2012]; Leder v. Spiegel, 31 A.D.3d 266, 268, 819 N.Y.S.2d 26 [1st Dept.2006], affd. 9 N.Y.3d 836, 840 N.Y.S.2d 888, 872 N.E.2d 1194 [2007], cert. denied552 U.S. 1257, 128 S.Ct. 1696, 170 L.Ed.2d 354 [2008]; Estate of Steinberg v. Harmon, 259 A.D.2d 318, 686 N.Y.S.2d 423 [1st Dept.1999] ). Plaintiff argues that, by exclusion from the settlement between Pinnacle and Athle–Tech, he was forced to incur more than $1 million in attorney's fees in defending against the second Athle–Tech litigation. However, plaintiff cannot show with sufficient certainty that he would have been able to settle with Athle–Tech and thereby have avoided or reduced his costs. Nor can any alleged damages be attributed to a breach of duty of loyalty based on defendant's prior representation of plaintiff in connection with the Montage SPA. By the time the settlement was made final, plaintiff's indemnification obligations under the Montage SPA were extinguished.
The court also properly denied plaintiff's motion to strike defendant's answer based on the destruction of electronic evidence. Plaintiff had all of the disputed documents and cannot claim any prejudice in pursuing his claim ( see Suazo v. Linden Plaza Assoc., L.P., 102 A.D.3d 570, 571, 958 N.Y.S.2d 389 [1st Dept.2013]; McMahon v. Ford Motor Co., 34 A.D.3d 263, 264, 825 N.Y.S.2d 447 [1st Dept.2006] ). Plaintiff further fails to establish that any failure to produce the emails was willful (CPLR 3126).
In view of the foregoing, plaintiff's motion seeking to dismiss defendant's affirmative defense was properly denied as moot.