Mountain Lion Baseball Inc. v. Gaiman

• Decision Date: 08 July 1999
• Citation: 693 N.Y.S.2d 289,263 AD2d 636
• Parties: MOUNTAIN LION BASEBALL INC., Appellant, v. Robert GAIMAN et al., Respondents. (And Three Other Related Actions.)
• Court: New York Supreme Court — Appellate Division

Page 289

693 N.Y.S.2d 289

MOUNTAIN LION BASEBALL INC., Appellant, v. Robert GAIMAN et al., Respondents.

(And Three Other Related Actions.)

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

July 8, 1999.

Dienst & Serrins LLP (Leslie H. Ben-Zvi of counsel), New York City, for appellant.

Greenberg & Gaiman LLP (Robert S. Gaiman of counsel), Monticello, respondents in person.

Before: CARDONA, P.J., MIKOLL, CREW III, YESAWICH JR. and SPAIN, JJ.

CREW III, J.

Appeal from an order of the Supreme Court (Keegan, J.), entered June 29, 1998 in Sullivan County, which, inter alia, granted defendants' motion for summary judgment dismissing the complaint.

In February 1995, plaintiff allegedly entered into an oral agreement with WRD Associates, pursuant to the terms of which WRD was to convey to plaintiff certain real property located in the Town of Fallsburg, Sullivan County, with the understanding that plaintiff would construct a minor league baseball stadium upon such parcel. In conjunction therewith William Resnick, one of WRD's partners, contacted defendant Robert Gaiman, an attorney and partner in defendant Greenberg and Gaiman LLP, and asked Gaiman to review the local zoning laws and determine whether construction of the baseball stadium on the property in question was permissible. To that end, Gaiman advised plaintiff's general manager that he had been retained to represent plaintiff and its sole shareholder, Edward Acton, in regard to obtaining the special use permit needed for the construction of the stadium. Gaiman thereafter appeared before the Town of Fallsburg Planning Board on various occasions in April 1995 and May 1995 and, following the issuance of the special use permit continued to represent plaintiff's interests with respect to the CPLR article 78 proceeding commenced by adjoining landowners to challenge the Planning Board's determination.

Difficulties thereafter developed between Resnick and Acton, prompting Resnick to ask Gaiman to intervene and enter into negotiations with Acton to resolve the underlying dispute. As Gaiman's prior representation of Acton posed a clear conflict of interest, Gaiman drafted a letter outlining the conflict and, further, seeking permission from plaintiff and Resnick to continue to represent plaintiff in the CPLR article 78 proceeding while representing Resnick in negotiations with Acton relative to the transfer of the baseball stadium. Both Resnick and Acton signed the August 14, 1995 letter acknowledging the conflict and consenting to the representation. Gaiman thereafter prepared, for Resnick's signature, a letter detailing and formalizing the financial arrangements that had been agreed to by Resnick and Acton. Although both Acton and Resnick signed the agreement, further difficulties ensued, resulting in the commencement of various related actions.

In December 1997, plaintiff commenced this action against defendants setting forth seven causes of action sounding in breach of fiduciary duty, legal malpractice, conflict of interest, false representation, intentional interference with contractual relations, prima facie tort and conspiracy. Following joinder of issue, defendants moved for summary judgment dismissing the complaint and plaintiff cross-moved to, inter alia, compel defendants to comply with certain discovery demands. Supreme Court granted defendants' motion for summary judgment dismissing the complaint in its entirety, prompting this appeal by plaintiff.

We affirm. Plaintiff's first three causes of action allege that defendants breached their fiduciary duty and committed legal malpractice by disclosing confidential information to Resnick, WRD and the Sullivan County Industrial Development Agency and, further, violated the Code of Professional Responsibility by creating and perpetuating a conflict of interest between plaintiff and Resnick/WRD. Our review of the record reveals that such claims are entirely without merit.

As to plaintiff's breach of fiduciary duty and legal malpractice claims, plaintiff alleges that it retained defendants in February 1995 to assist it in developing, financing and constructing the baseball stadium and that defendants thereafter disclosed confidential information obtained during the course of such representation to various individuals. In support of defendants' motion for summary judgment, Gaiman submitted an affidavit wherein he averred, among other things, that he was not retained to represent plaintiff until March 31, 1995 and then only in connection with issues before the Planning Board. Additionally, Gaiman averred that prior to August 14, 1995, when he agreed to intervene in the dispute between Acton and Resnick, he was not privy to any of the details surrounding the construction, operation or financing of the baseball stadium. In opposition, plaintiff offered absolutely nothing to substantiate its conclusory assertions to the contrary. Notably absent from the record is any documentation to support plaintiff's claim that defendants were retained to represent plaintiff in February 1995 with respect to the construction of the baseball stadium; indeed, defendant's billing records fully support Gaiman's contentions regarding the timing and scope of defendants' representation. Nor does the record disclose the confidential information allegedly divulged by defendants. With respect to plaintiff's conflict of interest claim, it is clear from the record that no conflict existed prior to August 1995, at which time defendants made full disclosure of the conflict and obtained consent from Acton and Resnick to continue to represent plaintiff and WRD in their respective capacities. Accordingly Supreme Court properly dismissed the first three causes of action.

We reach a similar conclusion with respect to plaintiff's fourth cause of action for false representation, wherein plaintiff sweepingly alleges that defendants "made...