Summary
dismissing breach of fiduciary duty claim as duplicative of malpractice claim
Summary of this case from Candela Entm't, Inc. v. Davis & Gilbert, LLPOpinion
No. 145 SSM 17.
Decided May 11, 2010.
APPEAL, by permission of the Appellate Division of the Supreme Court in the First Judicial Department, from an order of that Court, entered September 29, 2009. The Appellate Division affirmed an order of the Supreme Court, New York County (Bernard J. Fried, J.; op 20 Misc 3d 1146[A], 2008 NY Slip Op 51891[U]), which had granted a motion by defendants to dismiss the complaint pursuant to CPLR 3211. The following question was certified by the Appellate Division: "Was the order of this Court, which affirmed the order of the Supreme Court, properly made?"
In order to effectuate a $10 million investment, the individual plaintiff organized plaintiff J.V.W. Investment at the suggestion of a vice-president of managed accounts at British Trade and Commerce Bank (BTCB). Eventually, plaintiffs investment was stolen from the managed account, with BTCB allegedly laundering a portion of the stolen funds. Seeking to recover their lost money, plaintiffs engaged defendant attorneys. Following unsuccessful efforts to recover their investment, plaintiffs commenced an action sounding in legal malpractice, breach of fiduciary duty and fraud.
Waggoner v Caruso, 68 AD3d 1, affirmed.
Lally Mahon Rooney LLP, New York City ( James J. Mahon of counsel), for appellants.
Patterson Belknap Webb Tyler, LLP, New York City Frederick B. Warder III and Rosanne E. Felicello of counsel), for Kenneth A. Caruso, respondent.
Pillsbury Winthrop Shaw Pittman LLP, New York City ( E. Leo Milonas and David G. Keyko of counsel), respondent pro se.
Before: Chief Judge LIPPMAN and Judges CIPARICK, GRAFFEO, READ, SMITH, PIGOTT and JONES concur in memorandum.
OPINION OF THE COURT
The order of the Appellate Division should be affirmed, with costs, and the certified question not answered upon the ground that it is unnecessary.
The Appellate Division properly held that plaintiffs J. Virgil Waggoner and J.VW. Investment Ltd. of Dominica did not state a claim for legal malpractice insofar as they failed to allege that, but for defendants' alleged malpractice, they would have successfully recovered the $10 million investment in an underlying proceeding ( see Davis v Klein, 88 NY2d 1008, 1009-1010). The court also properly dismissed plaintiffs' claim in this case for breach of fiduciary duty as duplicative of the claim for legal malpractice.
On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals ( 22 NYCRR 500.11), order affirmed, etc.