Opinion
March 9, 1995
Appeal from the Supreme Court, New York County, Edward Lehner, J.
Summary judgment should not have been granted in favor of plaintiff since an issue of fact exists whether it committed malpractice (see, Drab v. Baum, 114 A.D.2d 992) in failing, inter alia, to disclose the likelihood that defendants' offering would not succeed (see, Code of Professional Responsibility EC 7-8), thereby breaching its fiduciary duty to bring to the client's attention all relevant considerations (see, Spector v Mermelstein, 361 F. Supp. 30, 39-40, affd in part and remanded in part 485 F.2d 474). However, summary judgment was properly granted in favor of the individual defendant in the absence of any "direct and explicit evidence of actual intent" by him to be held personally liable for the corporate defendant's debts (Salzman Sign Co. v. Beck, 10 N.Y.2d 63, 67).
Concur — Sullivan, J.P., Rosenberger, Asch and Mazzarelli, JJ.
Kupferman, J., dissents and would affirm for the reasons stated by Sherman, J.