Summary
dismissing claim for rescission where it was predicated on failed breach of fiduciary duty claim
Summary of this case from Muller–Paisner v. TiaaOpinion
December 7, 1995
Appeal from the Supreme Court, New York County (Leland DeGrasse, J.).
The verified complaint is devoid of factual allegations which sufficiently demonstrate a causal relationship between purported conduct on the part of defendants and damages suffered by plaintiff. This being true, each of the five causes of action asserted therein must fail ( see, Foley v D'Agostino, 21 A.D.2d 60).
The cause of action for legal malpractice fails to allege specific facts to show that defendants acted negligently in the provision of legal representation ( Robinson v Jacoby Meyers, 167 A.D.2d 134), but rather contains only repetitive conclusory allegations. For example, the complaint alleges that defendants had failed to ascertain "[f]acts sufficient to satisfy each element" of the Racketeer Influenced and Corrupt Organizations Act (RICO) claims in the underlying action, but does not suggest what those facts are or how they would have avoided the Federal court's dismissal of the RICO action. Nor did plaintiffs provide any basis for granting leave to replead this cause of action (CPLR 3211 [e]), or request such relief before the IAS Court.
Similarly, the causes of action for alleged breach of contract, fraud, breach of fiduciary duty, and rescission were insufficiently pleaded. This failing is most pointed with regard to the fraud and breach of fiduciary duty causes of action where a detailed factual pleading is statutorily required by CPLR 3016 (b) ( Levine Corp. v. Gimbel Accessories, 41 A.D.2d 637, 638). The insufficient pleading of those causes of action necessarily dooms the rescission cause of action as well since, in this instance, it is predicated upon the viable assertion of at least one of those claims ( see, Babylon Assocs. v County of Suffolk, 101 A.D.2d 207, 215; Callanan v Keeseville, Ausable Chasm Lake Champlain R.R. Co., 199 N.Y. 268, 284).
Concur — Murphy, P.J., Sullivan, Wallach, Ross and Williams, JJ.