Cosentino v Sullivan Papain Block McGrath & Cannavo, P.C.

Cosentino v Sullivan Papain Block McGrath & Cannavo, P.C. 2008 NY Slip Op 00625 [47 AD3d 599] January 31, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, March 12, 2008

Samuel Cosentino, Appellant,
v
Sullivan Papain Block McGrath & Cannavo, P.C., Respondent.

—[*1] Curtis & Associates, P.C., New York City (W. Robert Curtis of counsel), for appellant.

Wilson Elser Moskowitz Edelman & Dicker, LLP, New York City (Richard E. Lerner of counsel), for respondent.

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered June 26, 2006, which, in an action for legal malpractice, denied plaintiff's motion to amend the complaint to add a cause of action for breach of fiduciary duty, unanimously affirmed, without costs.

The proposed fiduciary breach claim lacks merit in that it fails to allege facts, rather than conclusions, to support the element of "but for" causation (see Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271-272 [2004]), and was therefore properly rejected (see Thompson v Cooper, 24 AD3d 203, 205 [2005]) even if, arguendo, the alleged conduct involved ethical violations (see Schwartz v Olshan Grundman Frome & Rosenzweig, 302 AD2d 193, 199 [2003]). The damages sought are speculative or otherwise not recoverable (see Postel v Jaffe & Segal, 237 AD2d 127 [1997]). In view of the foregoing, it is unnecessary to address the timeliness of the proposed claim. We have considered plaintiff's other contentions and find them unavailing. Concur—Andrias, J.P., Nardelli, Williams, Catterson and Moskowitz, JJ.