Raghavendra v Brill

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Raghavendra v Brill 2014 NY Slip Op 33961(U) January 31, 2014 Supreme Court, New York County Docket Number: 600002/2011 Judge: Lucy Billings Cases posted with a "30000" identifier, i.e., 2013 NY Slip Op 30001(U), are republished from various New York State and local government sources, including the New York State Unified Court System's eCourts Service. This opinion is uncorrected and not selected for official publication. [*FILED: NEW YORK COUNTY CLERK 02/04/2014 1] INDEX NO. 600002/2011 NYSCEF DOC. NO. 206 RECEIVED NYSCEF: 02/04/2014 SUPREME COURT OF THE STATE OF NEW YORK NEW YORK COUNTY PART PRESENT: tf, Justice INDEX.NO. 'C£(JO;.jwft MOTION DATE _ _ __ -v- MOTION SEQ. NO. tJO 5 The following papers, numbered 1 to _ _ , were read on this motion t o / f o r - - - - - - - - - - - - - Notice of Motion/Order to Show Cause Answering Affidavits - Affidavits - Exhibits Exhibits----------------- Replying A f f i d a v i t s - - - - - - - - - - - - - - - - - - - - - I No(s). _ _ _ _ __ I No(s). - - - , - - - 1No(s). _ _ _ __ w u i= Cf> ::::> ..., 0 l- o ·w . a:: a:: 'W LL. 'w I 0:: >- Ui z ...J ...J ~ LL. (/) <( ::::> 0 I- u w ' ~ (!) a:: : (/) w z a:: rn S:: - 0 w ...J (/) ..J ~ 0 (..) z LL. w 2 ~ 3 ~ 2: fZ Dated: t _u_r:f___..__Yd">_I_'~-· _, J.S.C. _s {Ji JN- 1. CHECK ONE: ..................................................................... cefcASE DISPOSED 2. CHECK AS APPROPRIATE: ........................... MOTION IS: ll'.f GRANTED 3. CHECK IF APPROPRIATE: ................................. ..... ..... ..... D SETTLE ORDER 0DONOT POST 0 DENIED LUCY EHLUNGS D NQR$Jm.L DISPOSl.TION D GRANTED IN PART D OTHER. 0 SUBMIT ORDER 0 FIDUCIARY APPOINTMENT 0 REFERENCE [* 2] SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK: IAS PART 46 -----------------------~----------------x I RAJAGOPALA S. RAGHAVENDRA a/k/a RANDY s. RAGHAVENDRA, Index No. 600002/2011 I Plalntif f DECISION AND ORDER - against EDWARD A. BRILL, individually and as attorney/partner at Proskauer Rose,· LLP, PROSKAUER ROSE, LLP, LEE C. BOLLINGER, individually and as president of Columbia University, TRUSTEES OF COLUMBIA UNIVERSITY, LOUIS D. STOBER, JR., individually and as attorney at law offi~es of Louis D. Stober,· Jr., "LLC, LAW OFFICE OF LOUIS D. STOBER, JR., LLC, JOHN DOE 1-10, and JANE DOE 1-10, Defendants ---------~:-----~--~---~----------~---~-x I. PRIOR RELATED ACTIONS Three federal actions by plaintiff and a charge of discrimination before the United States Equal Employment Opportunity Commission by plaintiff against defendant Trustees of Columbia University, Claiming retaliatory and wrong.ful termination of his employment and violation of his civil rights, underlie this action. On July 30, 2009, plaintiff, his attorney Louis D. Stober, Jr., Columbia University, and its attorney~ engagedin a full day of mediation, where plaintiff signed the "Terms of Settlement between Rajagopala S. Raghavendra and the Trustees of Columbia University in the City of New York." of Robert Modica (Oct. 2, 2012) Ex. H. Aff. The settlement provides. plaintiff a substantial payment in exchange for discontinuance of rghvndra.155 1 [* 3] all his claims in the four actions, provides for how his · employment references will be addressed in the future, and provides that the terms are final and binding on all parties. Plaintiff subsequently sought to disavow his settlement agreement based on fraud, duress, and illegality, primarily objecting to the release of all his claims against Columbia University and payment of any attorneys' fees to Stober and his law office. In a decision dated February 19, 2010, the United States District Court for the Southern District of New York rejected plaintiff;s contention that he was coerced into the mediation;. determined that the of negotiatio~ at arm's l'E~ngth, settlemen~ agreement·, as a product was va],id, enforceable, and · binding on pl~int~ff; and denied the relief he sought.~ Raghavendra v. Trustees of Columbia Univ., 686 F. Supp. 2d 332, 336 (S.D.N.Y. 2010), aff d in part and vacated in part, 434 F. 1 App'x 31 (2d Cir. 2011). Exercising supplemental jurisdiction, the federal district court ordered plaintiff to pay his attorney according to t.heir retainer agreement. 337-38. Id., 686 F. Supp. 2d at. The Court of Appeals for the Second Circuit affirmed the enforceability of the settlement agreement and remanded the action to the district court to determine the amount of the fee plaintiff owes Stober or his law office. 32. Id., 434 F. App'x at The district court in turn ruled that Stober was entitled to one third of the total payment due plaintiff under the settlement agreement, reduced by the $10,000 retainer fee plaintiff had paid. Raghavendra v. Trustees of Columbia Univ., 2012 WL rghvndra.155 2 [* 4] 3778823, at *7 (S.D.N.Y. Aug. 31, 2012). II. THIS ACTION Plaintiff commenced this action in 2011, alleging claims against defendant Stober and the Law Office of Louis D. Stober, Jr., LLC, against defendants Columbia University and its president Bollinger, and against the Columbia defendants' attorneys, defendants Brill and his law firm Proskauer Rose LLP. The Stober, Columbia University, and Proskauer Rose defendants each move to dismiss plaintiff's amended complaint against them pursuant to C.P.L.R. § 3211(a) (1), (5), and (7). Plaintiff separately moves for declaratory and preliminary injunctive relief.· C.P.L.R: §§ 3001, 6301,' 6312(a). - . Against the.Stober defendants, plaintiff.claims: (1) intentional and negligent misrepresentation.in inducing him to sign the 2009 settlement agreement; into their retainer agreement; for attorneys' services;' Professional Conduct; (5) (2) fraudulent inducement (3) breach of the 2007 contract· ( 4) violation of the· New York Rules of breach of a fiduciary duty; malpractice and gross negligence; (7) conflict of interest; breach of the settlement agreement; with the settlement agreement; (10) delibe;r-ate delay. and late (12) unjust enrichment; Judiciary Law§ 90(2) and perjury; (14) abuse of process;· (15) fraudulent misrepresentation and concealment; 3 (11) (13) violation of New York violation of New York General Business Law § 349; rgh".11dra.155 (8) (9) tortious interference payment entitling him to interest.at 9% per year; conversion; (6) legal (16) additional (17) conspiracy; [* 5] I (18) breach of implied and express warranties; wrongdoing; (19) intentional (20) .intentional infliction of emotional distre~s; and (21) violation of Judiciary Law 487. § Against defendants Columbia University and its president ,. Bollinger, plaintiff claims collusion with the Stober defendants and: (1) gross negligence; misrepresentation; (3) (2) intentional and negligent breach of the settlement agreement; tortious interfer~nce with a contract; additional fraud and concealment; of a fiduciary duty; (4) (5) abuse of process; (6) (7) aiding and abetting breach (8) aiding and abetting legal malpractice; (9) aiding and abetting abuse of process; abetting fraud and concealment; (10) aiding and (ll) conspiracy and collusion in abuse of process, legal malpractice, breach of a fiduciary duty, and fraud; (12) intentional wrongdoing; and (13) intentional infliction of emotional distress. ,Against the Columbia defendants' attorneys, defendants Brill and Proskauer Rose, plaintiff claims: gross negligence; misrepresentation; (2) (3) intentional and negligent aiding and abetting violation of the New York Rules of Professional Conduct; agreement; of process; (1) legal malpractice and (4) breach of the settlement (5) tortious interfer~nce with a contract; (7) additional fraud and concealment; abetting breach of a fiduciary duty; legal malpraciice; (8) aiding and (9) aiding and abetting (10) aiding and abetting abuse of process; (11) aiding and abetting fraud and concealment; and collusion in aiding and abetting; rghvndra.155 (6) abuse 4 (13) (12) conspiracy intentional [* 6] wrongdoing; (14) intentional infliction of ·emotional distress; and (15) violation of Judiciary Law III. § 487. THE STANDARDS APPLICABLE TO THE MOTIONS TO DISMISS THE AMENDED COMPLAINT Upon defendants' motions to dismiss the amended complaint· pursuant to C.P.L.R. § 3211(a) (7), the court must accept plaintiff's allegations as true, liberal.ly. construe them, and draw all reasonable inferences in his favor. Walton v. New York State Dept. of Correctional Services, 13 N.Y.3d 475, 484 (2009); Nonnon v. City of New York, 9 N.Y.3d 825, 827 (2007); IDT Corp. v. Tyco Group, S.A.R.L., 104 A.D.3d 170, 176 (1st Dep't 2012); Wadiak v. Pond Management, LLC, 101 A.D.3d 474, 475 2012). (lst Dep't No such consideration may.be given, however, to allegations that consist of only bare legal conclusions. v. Blank, 19 N.Y.3d 46, 52 (2012); David V. Hack, 438 (1st Dep't 2012). Simkin 97 A.D.3d 437, The court must determine whether the alleged facts· fit within any cogr;izable legal theory and may ' dismiss a claim based on C.P.L.R~ § 3211(a) (7) only if the allegations completely fail to state a claim. Leon v. Martinez, 84 N.Y.2d 83, 88 (1994); Harris v. IG Greenpoint Corp., 72 A.D.3d 608, 609 (1st Dep't 2010); Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 A.D.3d 267, 270-71 (1st Dep't 2004); Frank v. DaimlerChrysler Corp., 292 A.D.2d 118, 121 (1st Dep't 2002). When a defense is based on documentary evidence, the court may dismiss claims.only if that evidence conclusively establishes a defense as a matter of law. C.P.L.R. rghvndra.155 ·5 § 3211{a) (1); Lawrence v. [* 7] Graubard Miller, 11 N.Y.3d 588, 5~5 (2008); Goshen v. Mutual Life Ins. Co. of N.Y., 98 N.Y.2d 31~, 326 (2002); Leon v. Martinez, 84 N.Y.2d at 87-88; Greenapple v. Capital One, N.A., 92 A.D.3d 548, 550 (1st Dep't 2012). C.P.L.R. § 3211(a) (5) Dismissal of a claim is warranted under when defendants establish that the claim is barred by the statute of limitations, collateral estoppel, or res judicata. ~, A.D.3d 38, 43 ' Chelsea 18 Partners, LP v. Sheck Yee Mak, 90 (1st Dep't 2011); Constructamax, Inc. v. Weber, 109 A.D.3d 574, 576 (2d Dep't 2013). IV. THE STOBER DEFENDANTS' MOTION TO DISMISS THE AMENDED COMPLAINT A. Plaintiff's Duplicative Legal Malpractice Claims Plaihtiff's claim for int~ntional and negligent misrepresentation alleges misrepresentations by the Stober defendants (1) to plaintiff regarding attorneys' fees and the scope of the settlement covering all his clai.ms against -columbia University and (2) to tli.e federal district court and the mediator regarding the Strober defendants' limited representation. As the Stober defendants' breach of the retainer agreement, plaintiff alleges the Stober defendants neglected their obligations to conduct discovery and to obtain injunctive relief. For the breach of a fiduciary duty and the negligence claims, plaintiff alleges the Stober defendants failed to follow his instructions, misled him and failed to advise him -adequately regarding the mediation leading to a potential universal settlement, and failed to recuse themselves. For the conflict of interest claim, plaintiff alleges the Stober defendants tricked him into rghvndra.155 6 [* 8] accepting the lowest possible settlement amount. As the violation of General Business Law § 349, plaintiff alleges the Stober defendants failed to render legal services, misled him, and concealed information from him. As the violation of Judiciary Law§ 90(2) and perjury, plaintiff alleges the Stober defendants falsely represented their entitlement to attorneys' fees, the scope of their representation, and the assessed value of and their credit for settling plaintiff's various actions. For the legal malpractice and additional fraud and concealment claims, plaintiff alleges· the Stober defendants' _overall failure to represent him adequately in the federal litigation, their fraudulent inducement_to attend the mediation July 30, 2009, and to sign the settlement agreement, and. their attempt to callee~ their fees under the retainer agreement. The amended complaint is replete with legal conclusions and allegations of legally non-cognizable causes of ac~iobi rathei than facts that set·forth the elements of the .claims that are legally cognizable. C.P.L.R. §_·32ll(a) (7); Cosentino v. Sullivan Papain Block McGrath & Cannavo, P.C., 47 A.D.3d 599 (1st Dep't 2008). See NTL Capital, LLC v. Right Track Recording, LLC, 73 A.D.3d 410, 412 (1st Dep't 2010). Insofar as the claims against the Strober defendants recited immediately above are legally c~gnizable and are premised on facts, the Stober defendapts' the claims all relate tci legal representation, are premised on the same facts and seek the same relief as plaintiff's legal malpractice claim; and thus must be dismissed as duplicative. rghvndra.155 7 [* 9] Cusack v. Greenberg Traurig, LLP, 109 A.D.3d 747, 748 (1st Dep't 2013); Garnett v. Fox, Horan & Camerini, LLP,· 82 A.D.3d 435, 436 (1st Dep't 2011); Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., lO A.D.3d at 271. See Ulico Cas. -Co. v. Wilson, Elser, Moskowitz, Edelman & Dicker, 56 A.D.3d 1, 9 (1st Dep't 2008). _ B. Plaintiff's Claims Are Barred by Res Judi ca ta. The federal district court, exercising its supplemental jurisdiction, Raghavendra v. Trustees of Columbia Univ., 434 F. App'x at 32, ·already adjudicated plaintiff's fee dispute with the Stober defendants, finding that the retainer agreement is valid and.enforceable, tnat they diligently represented plaintiff before and during ihe mediation, and that they ~te e~titled to their attorneys' fees. Raghavendra v. Trustees of Columbia Univ., 2012 WL 3778823, at *6-7; Raghavendra v. Trustees of Columbia Univ., 6B6 F. Supp. 2d at 337. Applying the-principles of res judicata, plaintiff's malpractice claim arises from the same transactions and occurrences as the claims determined by the federal district court and Second Circuit Court of Appeals. RM 18 Corp v. Bank of N.Y. Mellon Trust Co., N.A., 104 A.D.3d 752, 756 (2d Dep't 2013); Uzamere v. Uzamere, 89 A.D.3d 1013, 1014 (2d Dep't 2011). _See Insurance Co. of State of Pa. v, HSBC Bank of USA I 10 N. y . 3 d 3 2 I 39 ( 2 008 ) . Implicit in the federal courts' rulings is either that Strober defendants did not commit malpractice or that any conceivable malpractice did not injure plaintiff. rghvndra.155 8 The federal [* 10] courts' determinatiohs were on the merits of the claims, between the same parties, precluding plaintiff from maintaining.the same claims under the rubric of legal malpractice in this action. C.P.L.R.. § 3211(a) (5); Finkel v. New York City Hous. Auth., 89 A.D.3d 492, 493 (ist Dep't 2011); Bettis v. Kelly, 68 A.D.3d 578,· 579 (1st Dep't 2009); Uzamere v. Uzamere, 89 A.D.3d at 1014-15. See Urlic v. Insurance Co. of State of Penn., 259 (1st Dep't 1999). A.D~2d 1, 4 Even i~ plaintiff alleges the Stober defendants' unlawful practices based on a different legal theory, res judicata and collateral estoppel bar him from relitigating the same factual issues here. C.P.L.R. § 3211(a) (5); Insurance Co. of State of Pa. v·. HSBC Bank of USA, 10 N. Y. 3d at 3 9; Masi v. Si vin, 69' A. D. 3d 52 O, 521 (1st Dep' t 2 010) ; Wotnen''s Interart Ctr., Inc. v. New York City Economic Dev. Corp. 426, 427 (1st Dep't 2009). maintain a (EDC), 65 A.D.3d Even were plaintiff authorized to claim in a judicial forum that the Stober defendants violated the rules of professional conduct, he fails to show that this claim, as well, is in any way distinct from his attack on the competency of the Stober defendants' representation, which the federal courts explicitly found involved no legal malpractice. See Schwartz v. Olshan Grundman Frome & Rosenzweig, 302 A.D.2d 193, 199 (lst Dep't 2003); William Kaufman Org. v. Graham & James, 269 A.D.2d 171, 173 (1st Dep't 2000); Swift v. Ki Young Choe, 242 A.D.2~ 188, 192 (1st Dep't 1998). · Similarly, plaintiff's claims that the Stober defendants fraudulently induced him into the retainer agreement, are ' rghvndra.155 9 [* 11] converting his settlement payment by seeking their attorneys' ' fees from the se~tlement, and will.be unjustly enriched by obtaining their fees simply take· issue with the federal courts' findings that the Stober defendants are entitled to their fees under the retainer agreement. Plaintiff in any event fails to plead the elements of fraudulent inducement, C.P:L.R. § 3016(b); Mandarin Trading Ltd. V. Wildenstein,· 16 N.Y.3d 173, -178-79 _(2011)'; Rivera v. JRJ Land Prop. Corp., 27 A.D, 3d 361, 364: .(1st Dep't 2006); Giant Group v. Arthur Andersen LLP, 2 A.D.3d 189, 190 (1.st Dep't 2003), conversion, or unjust enrichment. Mandarin Trading Ltd. v. Wildenstein, 16 N.Y.3d at 182-83; Russo v. Heller, 80 A.D.3d 531, 532· (1st Dep't -2011); Algomod.:Tech. Corp. v. Pride, 65,A.D.3d 974, 975 (1st Dep~t 2009); Sergeants Benevolent Assn. Annuity Fund v. Renck, 19 A.D.3d 107, 111".'12 (1st Dep't 2005). Therefore these claims, too, must be dismissed, based on their lack of factual. suppcirt, C.P.L.R. 321i(a) (7), as well as res·judicata and 6ollate~al estoppel. C.P,L.R. § 3~11(a) (5); Insurance Co. of State of Pa. v. HSBC Bank of USA, 10 N.Y.3d at 39; Finkel v. New York City Hous. Auth., 89 A.D.3d at 492-93; Women's Interart Ctr., Inc; v. New York City Economic Dev~ Corp. (EDC), _65 A.D.3d at 427-28. Plaintiff's claim that the Stob~r d~fendants violated Judiciary Law§ 487, by inducing plaintiff into signing the settlement agreement and misleading the federal court regarding. the scope of their representation, is similar. Plaintiff likewise fails to allege the requisite deceit or pattern of rghvndra.155. 10 [* 12] delinquency to state a claim under Judiciary Law § 487(1). Kaminsky v. Herrick, Feinstein LLP, 59 A.D.3.d 1, 13 (1st Dep't 2008); Mars v. Grant, 36 A.D.3d 561, 562 (1st Dep't 2007). Plaintiff equally fails to draw a causal connection between any deceit or delinquency by the Stober defendants and adverse consequences to him, a deficiency that is also claim. ~atal to any such Maksirniak v. Schwartzapfel Novick Truhowsky Marcus, P.C., 82 A.D.3d 652 (1s·t Dep' t 2011); Kaminsky v. Herrick, Feinstein LLP, 59 A. D. 3d at ·13; Nason v. Fisher, 36 A. D. 3d 486, 4 87 (1st Dep't 2007); Jaroslawicz v. Cohen, 12 A.D.3d 160, 161 (1st Dep't 2004) . ·. . ·Plaintiff's Claims Are Time Barred. C. . . . Plaintiff's claims of . ~ intentional~ infliction of emotional distress and abuse of judicial process by the Stober defendants, in that they tricked and harassed him by moving for their fees under the retainer agreement in the federal court and by their fraudulent conduct before and during the mediation in 2009, are barred by the one year statute of limitations for. intentional torts. C.P.L.R. A.D.2d 234, 235 215 (3); Spinale v; .10 West 66th St. Corp., 291 § (1st Dep't 2002). Plaintiff. further fails to allege facts demonstrating any conduct that rises to the extreme . . . and egregious level required for intentional infliction of emotional distress or demonstrating the issuance of any process beyond mo~ing C.P.L.R. § for their fees, to constitute abuse of process. 3211(a).(7); Phillips v. New York Daily News, 111 A.D.3d 420, 421 (1st Dep't 2013); Casa de Meadows Inc. rghvndra.155 11 (Cayman [* 13] Is.) v. Zaman, 76 A.D.3d 917, 921 (1st Dep't 2010). Liberall~ construing plaintiff's claim of intentional wrongdoing as a claim for a prima facie tort, it, too, is barred by the statute of limitations. Meadows Inc. C.P.L.R. 321l(a) (5); Casa de § (Cayman Is.) v. Zaman, 76 A.D.3d at 921. lacks the facts .to support such a claim. Plaintiff It, too, fa~ls to plead any facts showing malicious acts by the Stober defendants, solely motivated to cause plaintiff harm, as required to plead a prima f~cie tort. C.P.L.R. Univ., 110 A.D.3d 268, § 32ll(a) (7); Xickertz v. New York 280 (1st Dep't 2013). Therefore the court dismisses all claims for intentiorial tort~. D. Plaintiff's Further Failure to;Plead Claims for Relief The Stober defendants ar:e not parties to the settlement agreement between plaintiff and Columbia University, nor does plaintiff plead any facts showing the Stober defendants are required to perform under the agreement or made any affirmative promises associated with the ag·reement or otherwise. · VisionChina Media Inc. v. Shareholder Representative Servs., LLC, 109 ~.D.3d 49, 58 (1st Dep't 2013); Carol v. Madison Plaza Assoc., LLC, 95 A.D.3d 735, 736 (1st Dep't 2012). Therefore plaintiff fails to plead the facts necessary to support a breach of that agreement and his entitlement to interest on the amount ow.ed under t):le agreement, requirihg dismissal of those claims. C.P.L.R. § 3211 (a) (7). Plaintiff's alternative claim that the Stober defendants tortiously interfered with the settlement agreement fails because rghvndra.155 12 [* 14] plaintiff shows neither that the Stober defendants procured a breach by Columbia University, nor even that a breach occurred. C.P.L.R: § 3211(a) (7); Telerep, LLC v. U.S. Intl. Media, LLC, 74 A.D.3d 401, 402 (1st Dep't 2010); Marks v. Smith, 65 A.D.3d 911, 916 (1st Dep't 2009). The federal courts' rejection of plaintiff's challenge ·to the settle~ent agreement's validity and to his own performance obligations under the agreement also collater~lly estops plaintiff from claiming that Columbia University's failure pay is a breach as long as he refuses to perform under the agreement, C.P.L.R. § 3211(a) (5); Women'~ Interart Ctr., Inc. v. ·New York City Economic Dev. Corp. · (EDC), 65 A.D.3d at 427-28. Plaintiff further cla'ims breaches of the implied and. express warranties applicable to the sale of merchandise and thus inapplicable to the legal services provided by the Stober defendants. 2000). Castillo v. Tyson; 268 A.D.2d 336, 337 (1st Dep't Plaintiff's conclusory allegations in any event fail to set forth any express or implied guarantees by the Strober defendants. C.P.L.R. § 3211(a) (7). If plaiptiff's claim is considered a breach of the implied duty.of good faith and fair dealing, it solely concerns the parties' cont~act for legal services covered by his legal malpractice claim and therefore duplicates that claim. C.P.L.R. § 3211(a) (5); Cusack v. Greenberg Traurig, LLP, 109 A.D:3d at 748; Garnett v. Fox, Horan & Camerini, LLP, 82 A. D. 3d at 436; Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 A.D.3d at 271. rghvndra.155 13 [* 15] Finally, plaintiff's conspiracy claim, alleging that all defendants colluded to commit legal malpractice, abuse of judicial process, breach of a fiduciary duty, arid fraud, any facts showing conspiratorial conduct. C.P.L.R. § lacks 32l~(a) (7); Fleischer v. NYP Holdings, Inc., 104 A.D.3d 536, 537 (1st Dep't 2013). A.D.3d See Weinberg v. Mendelow, at *1 (1st Dep't Jan. 16, 2014). , ~014 WL 148635, Since civil conspiracy is not a cause of action independent of the wrong that defendants conspired to commit, when plaintiff has failed to plead any of those predicate claims, the conspiracy claim fails with them. Kickertz v. New York Univ., 110 A.D.3d at 281; Hoeffner v. Orrick, Herrington & Sutcliffe LLP, 85 A.D.3d 457, 45S-59;(1st Dep't 2011). As_for any of plaintiff's claims that alleg~ misrepresentation cir fraud, plaintiff fails to plead any facts .· . showing that the Stober defendants knowingly made material. misrepresentation~ to induce his reliance, reliance, and his resulting injury. his justifiable VisionChina Media Inc. v. Shareholder Representative Servs, LLC, 109 A.D.3d at 58; Carol v. Madison Plaza Assoc.'· LLC, 95 A.D.3d at 736. Therefore dismissal of these claims also is warranted under C.P.L.R. § 3211(a) (7): V. THE COLUMBIA UNIVERSITY DEFENDANTS' MOTION TO DISMISS THE AMENDED COMPLAINT Plaintiff contends that the Columbia University defendants conspired with the Stober defendants to misinform the mediator that Strober represented plaintiff despite knowing he was proceeding unrepresented; denied him honest attorney representation; induced plaintiff rghvndra.155 14 io attend the mediation; failed [* 16] to inform him that the potential settleme9t might include related actions in addition to the one action for which he retained Strober; colluded with Strober to deceive him into signing the 2009 settlement agreement; used direct intimidation, racial humiliation, and psychological abuse during the mediation; used deceptive language in the settlement agreement; harassed and intimidated him by prolonged and unnecessary litigation after he signed the agreement; and breached it by failing to pay plaintiff as it provided. As plaintiff fails· to allege any facts demonstrating Bollinger's personal involvement in the transactions·or occurrences on .which plaintiff's claims are premised, the bourt <lismisses ali claims against ~olliriger i~ his individual capacity. C.P~L.R. § 3211(a) (7); JDF Realty v. Sartiano, 93 A.D.3d 410' (1st Dep't 2012); Duane Reade, Inc. v. Local 338 Retail, Wholesale, Dept. Store Union, UFCW, AFL-CIO, 17 A.D.3d 277, 278 (1st Dep't 2005); Kahmi v. Tay, (1st Dep't 1997). 244 A.D.2d 266 Even with respect to the Columbia University, plaintiff's conclusory allegations lack any facts showing the objectionable conduct recited above. A. Failure to Plead Claims For Relief Since Columbia University was plaintiff's adversary, and plaintiff ~hows no fiduciary ~elationship with this defendant, it owed plaintiff no special duty of care. Therefore the court dismisses plaintiff's claims that depend on such a duty: gross negligence, negligent misrepresentation, and fraudulent concealment. rghvndra .155 C.P.L.R. § 3211.(a) (7); Gomez-Jimenez v. New York 15 [* 17] Law Sch., 103 A.D.3d 13, 17-18 (1st Dep't 2012); Dobroshi v. Bank of Am., N:A., 65 A.D.3d 882, 884 (1st Dep't 2009) . . The intentional torts alleged by plaintiff likewise lack essential elements. His abuse of process claim fails to allege any process issued against him by Columbia University. The abuse of litigation as a means to entrap and humiliate him that he alleges, even had he supported it with facts, is not regularly issued process. ·Casa de Meadows Inc. A.D.3d at 921. (Cayman Is.) v. Zaman, 76 His "intentional wrongdoing" claim, even if construed as a prima facie tort, similarly lacks the requisite facts showing Columbia University's malicious acts, motivated solely to cause him harm. Phillips v. New Yo:tk Daily News, 111 A.D.3d at 421; Casa de Meadows Inc. A.D.3d at 920-21. (cayman Is. l v. .Zaman, 76 His allegations that Columbia University intentionally inflicted emotional distress on him by its breach of the settlement agreement, its continued litigation against him, ·and its statements and conduct during the litigation do not reach the extreme and egregious level required for intentional infliction of emotional distress. Phillips v. New York Daily News, 111 A.D.3d at 421; Kaye v. Trump, 5_8 A.D.3d 579 (1st Dep't 2009). C.P.L.R. Therefore the court dismisses these three claims. § 3211 (a) (7). The court also dismisses plaintiff's aiding and abetting claims against Columbia University. C.P.L.R. 3211(a) (7). First, plaintiff has failed to plead the claims against the Strober defendants that he claims Columbia University aided and abetted. rghvndra.155 16 [* 18] Second, he fails to plead any facts showing Columbia University had actual knowledge of and took affirmative steps to enable the Stober defendants' wrongful conduct. Vilar v. Rutledge, 106 A.D.3d 489, 490 (1st Dep't 2013); Winkler v. Battery Trading, Inc., 89 A.D.3d 1016, 1017 (1st Dep't 2011) .• For the same reasons that the court dismissed plaintiff's claim of conspiracy and collusion against the Stober defendants, the court dismisses this claim against Columbia University as well. C.P.L.R. § 321l(a) (7); Kickertz v. New York Univ., 110 A.D.3d at 281; Fleischer v. NYP Holdings, Inc., 104 A.D.3d at 537; Hoeffner v. Orrick, Herrington & Sutcliffe LLP, 85 A.D.3d at 458-59. B. Claims Barred.By Res Judicata and Collateral Estbppel Under res.judicata, the federal courts' rulings that the settlement agreement was not a product of. fraud bar plaintiff from claiming Columbia University's fraud, misrepresentation, and aiding and abetting of fraud or misrepresentation during the mediation, since the' claims adjudicated by the federal courts were based on the same tran~actions and occurrences. C.P,L.R. § 3211(a) (5); Bettis v. Kelly, 68 A.D.3d at 579; Uzamere v. Uzamere, 89 A.D.3d at 1014-15. According to the federal court's ruling requiring plaintiff to tender all necessary executed documents releasing all his claims against Columbia University, it is not obligated to pay him under the settlement agreement until he complies with his required obligations under the agreement. Raghavendra v. Trustees of Columbia Univ., 2012 WL 3778823, at * 6-7. rghvndra. 155 This ruling precludes plaintiff from 17 [* 19] enforcing Columbia University's performance of the agreement while he v~hemently continues to disavow it. C.P.L.R. § 3211(a) (5); Women's Interart Ctr., Inc. v. New York City Economic Dev. Corp. (EDC), 65 A.D.3d at 427-28. Under these circumstances, since Columbia University has not breached the settl~ment relief. agreement, plaintiff fails to plead a claim for that C.P.L.R. § 3211(a) (7); Lavigny Holdings Ltd. v. Coller Intern. Partners V-A, LP, A.D.3d , 2014 WL 67324, at *1 (1st Dep't Jan. 9, 2014). Plaintiff's claim of Columbia University's tortious interference with a contract alleges that Columbia University bribed the Stober defendants with an attorneys' fees payment from ~laintiff's settlement. Res judidata and collateral estoppel bar this claim, too, as it seeks to relitigate the Strober defendants' entitlement to their fees according to the retainer agreement. C. P. L. R. § 3211 (a) ( 5) ;· Women's Interart Ctr., Inc. v. New York City Economic Dev. Corp. (EDC) 1 65_A.D.3d at 427-28. Insofar as this claim is premised on a different theory, plaintiff fails t9 show how Columbia University procured a breach of any contract by any other party or.nonparty,. whether of the settlement agreement that is between plaintiff and Columbia University only, the retainer agreement between him and the Stober defendants, or any other contract. Teler~p, C.P.L.R. § 3211(a) (7); LLC v. U.S. Intl. Media, LLC, 74 A.D.3d at 402; Marks v. Smith, 65 A.D.3d at 916. rghvndra.155 18 [* 20] VI. THE PROSKAUER ROSE DEFENDANTS' MOTION TO DISMISS THE AMENDED COMPLAINT All plaintiff's claims against the Pr6skauer Rose defendants, the law firm and its attorney Brill, are premised on the firm's legal representation of Columbia University. As plaintiff fails to allege any facts demonstrating Brill's personal involvement in the transactions or occurrences on which plaintiff'~ claims are premised, the couit dismisses all cl~ims against Brill.in his individual capacity .. C.P.L.R. § 32ll(a) (7); JDF Realty v. Sartiano, 93 A.D.3d 410; Duane Reade, Inc. v. Local 338 Retail, Wholesale, Dept. Store Union, UFCW, AFL-CIO, 17 A.D.3d at 278; Kahmi v. Tay, .244 A.D,2d 266. Plaintiff makes the;same conclusory allegations and the identical claims, except for additional claims of legal malpractice, violation of Judiciary Law§ 487, and aiding and abetting violation of the New York Rules of Professional Conduct, against Proskauer Rose as against Columbia University. Therefore, for the same reasons as those identical claims against Columbia University were dismissed, they are dismissed against Proskauer Rose. C . P . L . R . § 3 211 (a) ( 5 ) and . ( 7 ) . A fundamental element of a claim for legal malpractice, an attorney-client relationship between plaintiff and defendant, is missing against Proskauer Rose. Plaintiff alleges no other contractual obligation owed by Proskauer Rose to him, nor any other facts supporting the attorney's liability to a nonclient. Hadar v. Pierce, 111 A.D.3d 439, 440 (1st Dep't 2013); Federal Ins. Co. v. North Am. Specialty Ins. Co., 47 A.D.3d 52, 58-59. rghvndra.155 19 [* 21] (1st Dep't ~007). Again, even were plaintif-f authorized to maintain a claim in a judicial forl.!m regarding the Strober defendants' violation of the rules of professional conduct, collateral estoppel bars his relitigation of the competency of the Stober defendants' representation inherent ~n.his-claim and abetted such a violation. Frome & ~osenzweig, that Proskauer Rose aided See Schwartz v. Olshan Grundman 302 A.D.2d at 199; William Kaufman Org. v. Graham & James( 269 A.D.2d at 173; Swift v. Ki Young Choe, 242 A.0.2d at 192. As with his aiding and abetting claims against Columbia University, because plaintiff has failed to plead the claims against the Stober defendants that he claims Proskauer Rose aided and abetted'. or any facts showing it knew of arj.d took affirmative steps to enable-the Stober defendants' wrongful conduct, the elements of aiding and abetting are also missing. Vilar v. Rutledge, 106_A.D.3d_at 490; Winkler v. Battery Trading, Inc., 89 A.D.3d" at 1017. Pla{ntiff's claim-that Proskauer Rose violated Judiciary Law § 487, like his claim against the Stober defendants for such a violation, again fails to allege the requisite deceit, pattern of delinquency, _or causal connection between any such conduct by Proskauer Rose and adverse consequences to him, to state a claim under that statute. Maksimiak v. Schwartzapfel Novick Truhowsky Marcus, P.C., 82 A.D.3d at 652; Kaminskyv. Herrick, Feinstein LLP, 59 A.D.3d at 13; Mars v. Fisher, 36 A.D.3d at 487. rghvndra.155 Grant~ 36 A.D.3d at 562; Nason v. Therefore the court dismisses 20 [* 22] plaintiff's claims for legal malpractice, aiding and abetting,· and violation of Judiciary Law we 11 . VII. C. P . L . R . § § 487 against Proskauer Rose as 3 211 (a) ( 5 ) and . ( 7 ) . PLAINTIFF'S MOTION FOR EQUITABLE RELIEF Plaintiff separately moves for a declaratory judgment that any attorneys' fee claims by the Strober defendants are premature and un~nforceable pending the determination of his claims against them in this action. Plaintiff ~lso seeks an injunction requiring the Columbia University defendants to comply immediately with the terms of the settlement agreement dated July 30, 2009, by paying plaintiff the amount provided in the agreement without prejudice to his pending claims, including these defendants' breach of the settlement agreement. Since the court dismisses all the claims in the amended complaintagainst all defendants for the reasons explained above, plaintiff fails to show a likelihood of success on the merits of his claims as required for preliminary injunctive relief. Second on Second Cafe, Inc. v. Hing Sing Trading, Inc., 66 A.D.3d 255, 264, 2?6 (1st Dep't 2009) ;·Speranza v. Repro Lab inc., 62 A.D.3d 49, 55-56 (1st Dep't 2009); Alayoff v. Alayoff, 112.A.D.3d 564, 565 (2d Dep' t 2013) . Nor J.Fl there any need for the immediate relief plaintiff seeks against the Stober defendants, because they have not counterclaimed for attorneys' action. fees in this Both their entitlement to fees and the Columbia University defendants' obligations under the settlement agreement already have been adjudicated. rghvndra.155 This court lacks the authority to 21 [* 23] contravene the federal courts' determinations on those issues. Syncora Guar. Inc. v. J.P. Morgan Sec. LLC, 110 A.D.3d 87, 93-94 (1st Dep't 2013); UBS Sec. LLC v. Highland Capital Mgt., L.P., 86 A.D.3d 469, 474 (1st Dep't 2011). DISPOSITIO~ VIII. For all the reasons set forth above, the court grants all defendants' motions to dismiss the amended complaint, dismisses this action in its entirety,. C.P.L.R. § 3211(a), and denies plaintiff's motion for declaratory and preliminary injunctive relief. i, 7 I C.P.L.R. §§ 3001, 6301, 6312(a). This decision constitutes the court's order and judgment of dismissal. DATED: January31, 2014 LUCY BILLINGS, J.S.C. LUCY B!LUNGS . rghvndra.155 22 .!.S.C~

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