We challenge you to make sense of this follie a deux. Sanko v Roth 2016 NY Slip Op 30930(U) May 17, 2016 Supreme Court, New York County Docket Number: 650025/14
Judge: Gerald Lebovits. The defendant is either plaintiff’s attorney or not. He either started cases for plaintiff as his attorney or he did not. We are genuinely puzzled. However, note the names of the tennants-in-common
“Plaintiff is a tenant-in common who owns an undivided one:-third interest in the property located at 801 and 803 Greenwich Street in New York County. Defendant is an attorney who represented the other two co-owners in holdover and nonpayment proceedings in Housing Court: Mark Family Realty, LLC, and Selrob Family Limited Partnership. In 2006, defendant commenced a holdover proceeding against a tenant, Maggie Gyllenhaal (hereinafter the Gyllenhaal holdover proceeding). In 2011, defendant commenced a holdover proceeding and a nonpayment proceeding against tenants Annie Churchill Albert and Andrew Churchill Albert (hereinafter the Albert holdover and the Albert nonpayment proceedings, collectively the Albert proceedings). Plaintiff was a named petitioner in these proceedings.
Plaintiff brought this action against defendant alleging that defendant unlawfully commenced the above proceedings on plaintiff’s behalf without his authority by naming plaintiff as a petitioner. Plaintiff asserts ten causes of action: a declaratory judgment (first cause of action); a permanent injunction (second cause of action); aiding and abetting a breach of fiduciary duty (third cause of action); tortious interference with contract (fourth cause of action); abuse of process (fifth cause of action); forgery (sixth cause of action); prima facie tort (seventh cause of action); malicious prosecution (eighth cause of action); violation of the General Business Law Section § 349 (ninth cause of action); and legal malpractice (tenth cause of action).”
“The court grants that portion of the defendant’s motion to dismiss plaintiffs tenth cause of action for legal malpractice. Defendant contends that the tenth cause of action for legal malpractice must be dismissed because no attorney-client relationship exists between plaintiff and defendant. Plaintiff argues that defendant committed legal malpractice because defendant engaged in fraud and collusion. Plaintiffs cause of action for legal malpractice must be dismissed. To state a cause of action for legal malpractice, privity of contract is necessary. (Good Old Days Tavern v Zwirn, 259 AD2d 300, 300 (1st Dept 1999].) An exception exists: Liability may be extended to third parties when fraud, collusion, malicious acts, or other special circurristances are present. Absent privity, a legal malpractice claim must be pleaded with sufficient detail. (CPLR 3016 [b]; Hadar v Pierce, 111 AD3d 439, 440 [1st Dept 2013].) 9 [* 9] 11 of 14 Plaintiff and defendant agree that they never had an attorney-client relationship. Thus, the parties had no privity of contract. Plaintiffs allegations of fraud, however, are not pleaded with sufficient detail to fall within the exception-to-privity rule. Plaintiff fails to plead that defendant made an intentional misrepresentation to plaintiff himself that he was plaintiffs attorney. Nor does plaintiff plead that he relied on defendant’s misrepresentation that induced him to act to his detriment. Plaintiffs allegations of collusion are also insufficient to fall within the ambit of the exception. In conclusory fashion, plaintiff alleges that defendant colluded with the co-owners and defendant’s brother, Eric Roth, to gain advantage for one of the co-owners, Mark Family Realty, LLC, in its lawsuit against plaintiff. “