Carl v Cohen

Carl v Cohen 2008 NY Slip Op 08252 [55 AD3d 478] October 30, 2008 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. As corrected through Wednesday, December 10, 2008

John R. Carl, Appellant,
v
Joel Cohen, Esq., Respondent.

—[*1] White and Williams LLP, New York (Rafael Vergara of counsel), for appellant.

Frankfurt Kurnit Klein & Selz P.C., New York (Ronald C. Minkoff of counsel), for respondent.

Order, Supreme Court, New York County (Carol Robinson Edmead, J.), entered June 18, 2007, which, to the extent appealed from, granted defendant's motion to dismiss plaintiff's claims for tortious interference with prospective business advantage and fraud, unanimously affirmed, without costs.

The fraud claim was duplicative of the legal malpractice claim since it was "not based on an allegation of independent, intentionally tortious" conduct (Sabo v Alan B. Brill, P.C., 25 AD3d 420, 421 [2006]) and failed to allege "separate and distinct" damages (White of Lake George v Bell, 251 AD2d 777, 778 [1998], lv dismissed 92 NY2d 947 [1998]). The court did not improvidently exercise its discretion in denying leave to replead the fraud claim because the purportedly new evidence was insufficient to allege independent conduct not already included in the legal malpractice claim.

The tortious interference claim was insufficient because it failed to allege that defendant had directed his fraudulent conduct at a specific third party, that said party would have hired plaintiff but for defendant's misconduct, and that defendant's wrongful conduct was motivated solely by an intent to injure plaintiff (see Carvel Corp. v Noonan, 3 NY3d 182 [2004]). Concur—Lippman, P.J., Mazzarelli, Williams, Buckley and Renwick, JJ. [See 2007 NY Slip Op 31665(U).]