Rothman v McLaughlin & Stern, LLP

Rothman v McLaughlin & Stern, LLP 2015 NY Slip Op 03393 Decided on April 23, 2015 Appellate Division, First Department Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431. This opinion is uncorrected and subject to revision before publication in the Official Reports.

Decided on April 23, 2015
Gonzalez, P.J., Acosta, Moskowitz, Richter, Feinman, JJ.
14635 104230/10

[*1] Lee Rothman, Plaintiff-Appellant,

v

McLaughlin & Stern, LLP, et al., Defendants-Respondents.

Arnold E. DiJoseph P.C., New York (Arnold DiJoseph of counsel), for appellant.

Melito & Adolfsen, P.C., New York (S. Dwight Stephens of counsel), for respondents.

Judgment, Supreme Court, New York County (Manuel J. Mendez, J.), entered December 5, 2013, dismissing the complaint, unanimously affirmed, without costs.

In this action for legal malpractice, defendants, attorney Martin J. Friedman and his firm, McLaughlin & Stern, LLP, represented plaintiff in connection with the acquisition of an interest in two companies. After plaintiff lost the money he invested because the companies turned out to be part of a Ponzi scheme, he commenced this action alleging that defendants failed to conduct due diligence with respect to the companies' finances.

Defendants established their entitlement to judgment as a matter of law by submitting proof that plaintiff, an experienced investor, understood that the retainer agreement excluded due diligence from the scope of representation. Namely, the evidence demonstrates that plaintiff declined his accountant's advice to conduct due diligence and that he advised defendants that none was needed because he trusted the companies' owner and had engaged in numerous business transactions with her. Plaintiff's statements that he did not want any due diligence conducted, set forth in affidavits by defendant Friedman and plaintiff's accountant, are admissible as party admissions (see e.g. Delgado v Martinez Family Auto, 113 AD3d 426 [1st Dept 2014]).

Furthermore, plaintiff's damages are not attributable to defendants. To the extent plaintiff sustained any non-speculative losses, the motion court correctly concluded that those losses were caused by the fraud committed by the owner of the companies and plaintiff's own misjudgment of the business risks, not by defendants' alleged conduct (see Garten v Shearman & Sterling LLP, 102 AD3d 436, 436-37 [1st Dept 2013], lv denied 21 NY3d 851 [2013]).

The record belies plaintiff's contention that defendants received undisclosed third-party payments that constituted a conflict of interest (see former Code of Professional Responsibility DR 5—107[A][1] [22 NYCRR 1200.26[a][1]]). Plaintiff knew of and consented to the offer by the companies' owner to pay part of defendants' legal fees. Moreover, payments were made well after the acquisition closed, and plaintiff cites no evidence that the arrangement pre-dated the closing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: APRIL 23, 2015

CLERK