Pro-Se Plaintiff Strikes Out
Plaintiff sues law firm, which represented his former employer after he failed to get them to file a corrected opinion letter to facilitate removal of restrictive legends on his stock certificate. The mistake was in the opinion letter where the law firm mistakenly said it represented "Plaintiff" rather than the employer.
The Appellate Division affirms Judge Bransten writes and writes an opinion that lists every attempt the plaintiff made to hold the law firm responsible, denying each. In Cusack v Greenberg Traurig, LLP 2013 NY Slip Op 06070 Decided on September 26, 2013.
"The complaint stems from plaintiff's failed efforts to have defendant, counsel for plaintiff's former employer, American Defense Systems, Inc. (ADSI), issue a corrected opinion letter to facilitate removal of restrictive legends on his stock certificate. Defendants had issued an opinion letter that misstated that it represented plaintiff, rather than ADSI. Defendant asserts that ADSI subsequently directed it not to issue a corrected letter because ADSI maintains, in a separate lawsuit, that plaintiff fraudulently procured his employment and the stock.
The court properly dismissed the claim of legal malpractice, as there was no attorney-client relationship (Waggoner v Caruso, 68 AD3d 1, 5 [1st Dept 2009], affd 14 NY3d 874 ). Defendant represented ADSI, not its shareholders or employees and, thus, not plaintiff (Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 562 ). Contrary to plaintiff's contentions, nothing in the parties' actions created an attorney-client relationship (see Polovy v Duncan, 269 AD2d 111, 112 [1st Dept 2000]). Defendant's request that plaintiff complete a second shareholder questionnaire to issue a corrected opinion letter does not suffice to create an attorney-client relationship. Defendant represented ADSI in ongoing adversarial litigation against plaintiff after his employment was terminated. Moreover, plaintiff essentially acknowledges the lack of an attorney-client relationship, as his complaint largely stems from the allegation that defendant misstated that it represented plaintiff in the opinion letter.
Nor is there near privity to support a claim of legal malpractice based on an allegedly negligent misrepresentation. As the motion court noted, the opinion letter was addressed to BNY Mellon, and as plaintiff alleged in the complaint, the parties contemplated only that BNY Mellon, not plaintiff, would
rely on the letter (Prudential Ins. Co. of Am. v Dewey, Ballantine, Bushby, Palmer & Wood, 80 NY2d 377, 384 ).
The motion court correctly dismissed the breach of fiduciary duty claim, as there was no attorney-client relationship and no other factual allegations establishing such a duty (see [*2]Eurycleia Partners, 12 NY3d at 562).
Plaintiff cites no allegations in the complaint to refute the motion court's conclusion that there was no breach of contract claim. Plaintiff failed to allege that the "contract," defendant's alleged acceptance of plaintiff's offer to issue a letter to remove the restrictive covenant, was supported by consideration. Since a claim for breach of a duty of good faith cannot be plead absent an underlying contract (see Keefe v New York Law School, 71 AD3d 569, 570 [1st Dept 2010]), that claim was properly dismissed as well.
The motion court correctly dismissed the fraud claim and both negligence claims as duplicative of plaintiff's malpractice claim (see Dinhofer v Medical Liab. Mut. Ins. Co., 92 AD3d 480, 481 [1st Dept 2012], lv denied 19 NY3d 812 ; Weksler v Kane Kessler, P.C., 63 AD3d 529, 531 [1st Dept 2009]).
Contrary to plaintiff's contention, in assessing the common-law securities fraud claim, the motion court acknowledged that plaintiff's alleged deceptive practices included not only issuance of a defective opinion letter but also the subsequent failure to correct it. To allege fraud, however, the complaint must allege, among other things, that plaintiff justifiably relied on an alleged misrepresentation or material omission (IDT Corp. v Morgan Stanley Dean Witter & Co, 12 NY3d 132, 140 ). The only alleged misrepresentation here was the misstatement in the opinion letter that defendant represented plaintiff, and the motion court correctly concluded that plaintiff failed to allege that he relied on it to his detriment.
The court also properly dismissed plaintiff's securities fraud claim based on General Business Law § 349, as plaintiff's allegations do not encompass consumer-oriented conduct (see Oswego Laborers' Local 214 Pension Fund v Marine Midland Bank, 85 NY2d 20, 24-25 ). "