Opinion
887 Index No. 155297/22 Case No. 2023–01745
10-24-2023
Rhiyen SHARP, Plaintiff–Appellant, v. FERRANTE LAW FIRM et al., Defendants–Respondents.
McCallion & Associates LLP, New York (Kenneth F. McCallion of counsel), for appellant. Lewis Brisbois Bisgaard & Smith LLP, New York (Peter T. Shapiro of counsel), for respondents.
McCallion & Associates LLP, New York (Kenneth F. McCallion of counsel), for appellant.
Lewis Brisbois Bisgaard & Smith LLP, New York (Peter T. Shapiro of counsel), for respondents.
Kern, J.P., Singh, Gesmer, Scarpulla, O'Neill Levy, JJ.
Order, Supreme Court, New York County (Lynn R. Kotler, J.), entered April 6, 2023, which, to the extent appealed from, granted defendants Ferrante Law Firm and Frank Ferrante, Jr.’s CPLR 3211(a) motion to dismiss the amended complaint, unanimously affirmed, without costs.
The motion court incorrectly applied the doctrine of collateral estoppel to preclude plaintiff's legal malpractice claim, as plaintiff's attorney-client relationship with defendants was not the issue determined in the arbitration between plaintiff and plaintiff's former employer, Industry Model Group LLC d/b/a Industry Model Management (IMM). Nevertheless, the malpractice claim must be dismissed because it is time-barred. Plaintiff confirmed in the amended complaint that the alleged attorney-client relationship ended as of July 10, 2018. Therefore, the statute of limitations for plaintiff's malpractice claim expired in July 2021, three years after the attorney-client relationship ended (see CPLR 214[6] ). As plaintiff did not commence this action until June 23, 2022, the malpractice claim is time-barred. Even if the malpractice claim was timely, it should be dismissed because plaintiff failed to allege any negligence on the part of defendants in connection with the July 2018 correspondence (to assist plaintiff's re-entry into the United States), or that it harmed him.
Plaintiff's second cause of action for conspiracy to defraud was also properly dismissed. Plaintiff failed to properly plead a conspiracy to defraud claim. The complaint alleges that defendants and IMM secretly agreed to induce plaintiff to commit to employment for a three-year term by drafting and inducing him to sign the subject contract, while concealing their "secret understanding" that IMM would be free to terminate plaintiff at any time without cause. However, as "[a] mere conspiracy to commit a [tort] is never of itself a cause of action" ( Alexander & Alexander of N.Y., Inc. v. Fritzen, 68 N.Y.2d 968, 969, 510 N.Y.S.2d 546, 503 N.E.2d 102 [1986] [internal quotation marks omitted]), plaintiff was required to plead the elements of the underlying fraud claim (see Eurycleia Partners, LP v. Seward & Kissel, LLP, 12 N.Y.3d 553, 559, 883 N.Y.S.2d 147, 910 N.E.2d 976 [2009] ), which he failed to do. Plaintiff does not allege any facts to show or suggest that IMM told or consulted defendants about their decision to fire plaintiff, much less that defendants orchestrated the scheme. Absent those required well-pleaded facts, plaintiff's accusation of fraud amounts to nothing more than "bare legal conclusions," and his fraud claim must be dismissed ( Lincoln Place LLC v. RVP Consulting, Inc., 16 A.D.3d 123, 124, 791 N.Y.S.2d 31 [1st Dept. 2005] ).