O'Callaghan v. Brunelle

• Decision Date: 17 May 2011
• Docket Number: 5077 150097/09
• Court: New York Supreme Court — Appellate Division
• Parties: James G. O'Callaghan, Plaintiff-Appellant, v. George Brunelle, etc., et al., Defendants-Respondents, Does 1 through 10, Defendants.

2011 NY Slip Op 04095

James G. O'Callaghan, Plaintiff-Appellant,
v.
George Brunelle, etc., et al., Defendants-Respondents, Does 1 through 10, Defendants.

5077 150097/09

Appellate Division of the Supreme Court of the State of New York

ENTERED: MAY 17, 2011

Mazzarelli, J.P., Sweeny, Acosta, Renwick, DeGrasse, JJ.

Ambrosio, De Pierro & Wernick, LLC, New York (Batya G. Wernick of counsel), for appellant.

Wilson, Elser, Moskowitz, Edelman & Dicker, New York (Robert J. Pariser of counsel), for respondents.

Order, Supreme Court, New York County (Paul G. Feinman, J.), entered June 14, 2010, which, in an action alleging, inter alia, legal malpractice, granted defendants' motion to dismiss the complaint, unanimously affirmed, with costs.

Plaintiff was charged with violating various rules of the New York Stock Exchange (NYSE) and the Securities Exchange Commission (SEC) for engaging in prohibited conduct while working as a floor trader, by simultaneously initiating and executing transactions on behalf of a company in which he had investment discretion. He was convicted of the charges at a disciplinary proceeding and commenced this action against his attorneys for failure to call a certain witness during the proceeding.

The documentary evidence in support of the motion, including decisions from the NYSE and SEC, refuted plaintiff's allegations that defendants' failure to call the witness, who consented to the NYSE's Hearing Panel's finding that he engaged in conduct constituting improper trading arrangements and violated various rules, constituted legal malpractice and established a defense as a matter of law warranting dismissal of the complaint (see Minkow v Sanders, __ AD3d __, 2011 NY Slip Op 02120 [2011]; see also CPLR 3211[a][1]). Contrary to plaintiff's contention, it is apparent from the motion court's decision that it properly treated the instant motion as one to dismiss and not one for summary judgment (compare Sokol v Leader, 74 AD3d 1180 [2010]).

Plaintiff also failed to state a cause of action for legal malpractice, which requires that a complaint allege "the negligence of the attorney; that the negligence was the proximate cause of the loss sustained; and actual damages" (Leder v Spiegel, 31 AD3d 266, 267 [2006], affd 9 NY3d 836 [2007], cert denied 552 US 1257 [2008]; see CPLR 3211[a][7])....