Freeman v Brecher

Freeman v Brecher 2017 NY Slip Op 07949 Decided on November 14, 2017 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 November 14, 2017
Friedman, J.P., Kapnick, Webber, Gesmer, JJ.
4930 152087/15

[*1]Marjatta Freeman, Plaintiff-Appellant,

v

Dan Brecher, Esq., et al., Defendants-Respondents, John Does 1 through 5, Defendants.

Aitken Berlin LLP, White Plains (Bernard V. Kleinman of counsel), for appellant.

Rivkin Radler LLP, Uniondale (David Wilck of counsel), for Dan Brecher, Esq. and Scrinci Hollenbeck, L.L.C., respondents.

Matalon Shweky Elman PLLC, New York (Jeremy C. Bates of counsel), for Pullman & Comley, LLC, respondent.

Order, Supreme Court, New York County (Jeffrey K. Oing, J.), entered January 13, 2016, which granted defendants-respondents' motions to dismiss the complaint, unanimously affirmed, without costs.

Plaintiff's claim for legal malpractice in connection with an underlying settlement fails to state a cause of action in the absence of allegations that the "settlement . . . was effectively compelled by the mistakes of [defendant] counsel" (Bernstein v Oppenheim & Co., 160 AD2d 428, 430 [1st Dept 1990]) or the result of fraud or coercion (see Beattie v Brown & Wood, 243 AD2d 395 [1st Dept 1997]). Plaintiff's equivocal denial of knowledge of the terms of the settlement is flatly contradicted by the clear terms of the settlement agreement (see Bishop v Maurer, 33 AD3d 497, 499 [1st Dept 2006], affd 9 NY3d 910 [2007]). Additionally, plaintiff's speculative and conclusory allegations of proximately caused damages cannot serve as a basis for a legal malpractice claim (see Pellegrino v File, 291 AD2d 60, 63 [1st Dept 2002], lv denied 98 NY2d 606 [2002]). Plaintiff's cause of action for breach of fiduciary duty arising from the same conduct was correctly dismissed as duplicative of the legal malpractice claim (see Garnett v Fox, Horan & Camerini, LLP, 82 AD3d 435, 436 [1st Dept 2011]; InKine Pharm. Co. v Coleman, 305 AD2d 151, 152 [1st Dept 2003]). Plaintiff has abandoned her breach of fiduciary duty claim based on a referral scheme, and, in any event, has failed to properly plead such a scheme.

The speculative nature of plaintiff's claim of damages arising from defendant Dan Brecher's alleged conflict of interest in assuming a board position in a company in which plaintiff invested while simultaneously serving as plaintiff's counsel cannot support a legal malpractice claim (see Dweck Law Firm v Mann, 283 AD2d 292, 294 [1st Dept 2001]).

The Judiciary Law § 487 claims were correctly dismissed, as the conduct alleged does not evince a chronic and/or extreme pattern of legal delinquency (see Chowaiki & Co. Fine Art Ltd. v Lacher, 115 AD3d 600, 601 [1st Dept 2014]). Additionally, plaintiff has not alleged any proximately caused damages or identified any damages sustained as a result of Brecher's alleged conflict of interest, which did not arise in the course of a judicial proceeding and thus is not actionable under the statute (see Meimeteas v Carter Ledyard & Milburn LLP, 105 AD3d 643 [1st Dept 2013]).

Plaintiff's unsubstantiated hope that discovery and time will help salvage her claims is [*2]insufficient to defeat the motions (see CPLR 3211[d]; Leonard v Gateway II, LLC, 68 AD3d 408, 410 [1st Dept 2009]).

We have considered plaintiff's remaining arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER

OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.

ENTERED: NOVEMBER 14, 2017

CLERK