Freeman v. Brecher

• Decision Date: 14 November 2017
• Citation: 155 A.D.3d 453,64 N.Y.S.3d 13
• Parties: Marjatta FREEMAN, Plaintiff–Appellant, v. Dan BRECHER, Esq., et al., Defendants–Respondents, John Does 1 through 5, Defendants.
• Court: New York Supreme Court — Appellate Division

155 A.D.3d 453

64 N.Y.S.3d 13

Marjatta FREEMAN, Plaintiff–Appellant,

v. Dan BRECHER, Esq., et al., Defendants–Respondents,John Does 1 through 5, Defendants.

Supreme Court, Appellate Division, First Department, New York.

Nov. 14, 2017.

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.

FRIEDMAN, J.P., KAPNICK, WEBBER, GESMER, JJ.

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 A.D.2d 428, 430, 554 N.Y.S.2d 487 [1st Dept.1990] ) or the result of fraud or coercion (see Beattie v. Brown & Wood, 243 A.D.2d 395, 663 N.Y.S.2d 199 [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 A.D.3d 497, 499, 823 N.Y.S.2d 366 [1st Dept.2006], affd. 9 N.Y.3d 910, 844 N.Y.S.2d 165, 875 N.E.2d 883 [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 A.D.2d 60, 63, 738 N.Y.S.2d 320 [1st Dept.2002], lv. denied 98 N.Y.2d 606, 746 N.Y.S.2d 456, 774 N.E.2d 221 [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 A.D.3d 435, 436, 918 N.Y.S.2d 79 [1st Dept. 2011] ; InKine Pharm. Co. v. Coleman, 305 A.D.2d 151, 152, 759 N.Y.S.2d 62 [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 A.D.2d 292, 294, 727 N.Y.S.2d 58 [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 A.D.3d 600, 601, 982 N.Y.S.2d 474 [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...