Geary v. Hunton & Williams
| Decision Date | 21 January 1999 |
| Citation | 257 A.D.2d 482,684 N.Y.S.2d 207 |
| Parties | 1999 N.Y. Slip Op. 352 Harold C. GEARY, Plaintiff-Appellant, v. HUNTON & WILLIAMS, Defendant-Respondent, and Scott J. McKay Wolas, Defendant. |
| Court | New York Supreme Court — Appellate Division |
Mitchel H. Ochs, for Plaintiff-Appellant.
John J. Buckley, Jr., for Defendant-Respondent.
SULLIVAN, J.P., NARDELLI, RUBIN and MAZZARELLI, JJ.
Order, Supreme Court, New York County (Franklin Weissberg, J.), entered June 12, 1998, which, in an action for fraud and breach of contract against defendant law firm, plaintiff's former employer, granted defendant's motion for summary judgment dismissing the complaint, unanimously affirmed, with costs.
Plaintiff's fraudulent inducement cause of action, which seeks recovery for the loss of enhanced earning potential that plaintiff allegedly would have realized had defendant's banking litigation practice been as substantial as allegedly represented, or if he had accepted a job with a different employer, is legally insufficient. The damages plaintiff seeks are not recoverable under the out-of-pocket rule, which bars recovery of profits that would have been realized in the absence of fraud, including the loss of an alternative bargain overlooked in favor of the fraudulent one, as inherently speculative and undeterminable (Lama Holding Co. v. Smith Barney, 88 N.Y.2d 413, 421, 646 N.Y.S.2d 76, 668 N.E.2d 1370; see also, Alpert v. Shea Gould Climenko & Casey, 160 A.D.2d 67, 71-72, 559 N.Y.S.2d 312; Mihalakis v. Cabrini Med. Ctr., 151 A.D.2d 345, 346, 542 N.Y.S.2d 988, lv. dismissed in part, lv. denied in part 75 N.Y.2d 790, 552 N.Y.S.2d 98, 551 N.E.2d 591). In any event, even if the alleged damages to plaintiff's career development were recoverable (see, Stewart v. Jackson & Nash, 976 F.2d 86), plaintiff admits that he gained substantial experience in banking litigation while employed by defendant, and therefore plaintiff's reliance on any inaccurate representations as to the size of defendant's banking litigation practice in accepting defendant's offer of employment could not have been the cause of plaintiff's failure to meet his career goals. Indeed, according to plaintiff, he was terminated not because defendant did not have enough banking litigation to justify his further employment but because he raised concerns about the ethical propriety of a partner's billing practices. This breach of contract theory (see, Wieder v. Skala, 80 N.Y.2d 628, 593...
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