Kaplan v. Conway and Conway

• Decision Date: 06 June 2019
• Docket Number: Index 158060/17,9558A,M–2347,9558
• Citation: 102 N.Y.S.3d 612,173 A.D.3d 452
• Court: New York Supreme Court — Appellate Division
• Parties: Adam KAPLAN, et al., Plaintiffs–Appellants, v. CONWAY AND CONWAY, et al., Defendants–Respondents.

173 A.D.3d 452

102 N.Y.S.3d 612

Adam KAPLAN, et al., Plaintiffs–Appellants,

v.CONWAY AND CONWAY, et al., Defendants–Respondents.

9558

9558A

M–2347

Index 158060/17

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

Entered: June 6, 2019

Law Office of Daniel L. Abrams, PLLC, New York (Daniel L. Abrams of counsel), for appellants.

Conway & Conway, New York (William W. Bergesch of counsel), for respondents.

Friedman, J.P., Tom, Kapnick, Kahn, JJ.

Judgment, Supreme Court, New York County (Frank P. Nervo, J.), entered September 17, 2018, dismissing the complaint with prejudice, unanimously affirmed, without costs. Appeal from order, same court and Justice, entered September 6, 2018, which granted defendants' motion to dismiss pursuant to CPLR 3211(a)(7), unanimously dismissed, without costs, as subsumed in the appeal from the judgment.

A claim for legal malpractice requires that a plaintiff allege facts that, if proven at trial, would demonstrate that the attorney "failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession and that the attorney's breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages" ( Rudolf v. Shayne, Dachs, Stanisci, Corker & Sauer, 8 N.Y.3d 438, 442, 835 N.Y.S.2d 534, 867 N.E.2d 385 [2007] [internal quotation marks and citation omitted]; see Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 A.D.3d 267, 271–272, 780 N.Y.S.2d 593 (1st Dept. 2004).

The motion court properly granted defendants' motion to dismiss. The complaint alleged that defendants committed legal malpractice by failing to timely advocate for a "formal closure" of a "sham" internal investigation instigated by plaintiffs' employer, or to secure "more favorable language" in the FINRA U–5 Forms that were filed upon plaintiffs' voluntary resignation. As a result of defendants' alleged negligence, plaintiffs claim that they were subject to a FINRA investigation and "reputational damage." Given the vague, speculative, and conclusory nature of these allegations, plaintiffs failed to allege facts that "fit into any cognizable legal theory" (see Nonnon v. City of New York, 9 N.Y.3d 825, 827, 842 N.Y.S.2d 756, 874 N.E.2d 720 [2007], quoting Leon v. Martinez, 84 N.Y.2d 83, 87–88, 614 N.Y.S.2d 972, 638 N.E.2d 511 [1994] [internal quotation marks omitted] ).

Moreover, emails submitted by defendants show that the law firm did advocate for plaintiffs' employer to include language on the U–5 Forms indicating that any allegations against plaintiffs were unsubstantiated, and plaintiffs' employer refused, calling such language a "non-starter." Defendants also drafted a "Broker Comment," which would have provided plaintiffs' rebuttal to the negative information included on their U–5...