In this version of Dr. v. Lawyer, it’s a knock-out to the lawyer. Doctor joins a medical practice and comes under scrutiny for his advocacy of “pranic healing.” “Pranic Healing® is a highly evolved and tested system of energy medicine developed by GrandMaster Choa Kok Sui that utilizes prana to balance, harmonize and transform the body’s energy processes. Prana is a Sanskrit word that means life-force. This invisible bio-energy or vital energy keeps the body alive and maintains a state of good health. In acupuncture, the Chinese refer to this subtle energy as Chi. It is also called Ruach or the Breath of Life in Hebrew”
So, anyway, back to the legal malpractice. Doctor had the opportunity to review a series of corporate amendments, and did not go to see the changes when offered. The changes might have been aimed at him, and he was let go. Litigation ensued in Mendoza v Akerman Senterfitt LLP 2015 NY Slip Op 04193 Decided on May 14, 2015 Appellate Division, First Department.
“Plaintiff is a doctor specializing in pediatric, prenatal, and neonatal medicine. In April 2000, he joined nonparty Children’s and Women’s Physicians of Westchester, LLP (CWPW). He signed both an Amended and Restated Partnership Agreement dated, January 29, 1999, and an employment agreement that was subsequently amended in April 2002.
During the negotiations between CWPW and plaintiff, CWPW was represented by defendant Eric W. Olson’s prior law firm, and plaintiff was represented by independent counsel.
On October 25, 2010, nonparty Dr. Leonard Newman, CWPW’s president, sent an email to CWPW’s managing partners, including plaintiff. Newman’s email forwarded an email from defendant Olson, now a member of defendant Akerman Senterfitt LLP, regarding certain amendments to the partnership agreement:
“I am forwarding to each of you the recommendation of our attorney, Eric Olson . . . in the development of a tiered structure for Managing Partners . . . .”Please review the explanation listed below from Eric Olson. Questions can be directed to Mr. Olson [at his office].”. . . You can come to [an office at CWPW’s principal place of business] to review the documents. However, due to the confidential nature of the documents, we need to limit their distribution beyond the Chairman’s Office. Please stop by before November 15th.”
Olson’s email stated, “This e-mail intends to summarize the two major changes to CWPW’s Partnership Agreement” — namely, “Implementation of a Tiered Managing Partner Structure” and “Entities as Partners” [to meet requirements in the agreement]. In addition to “the two major changes” that Olsen mentioned, the amendment also amended, as relevant here, the grounds for removal of managing partners and the grounds for dissociation of a partner.
On March 8, 2011, Olson sent plaintiff a notice that CWPW intended to terminate his employment based on breaches of the employment agreement — specifically, because of his “pranic healing” practice. Thereafter, plaintiff commenced the instant action asserting causes of[*2]action for aiding and abetting CWPW’s breach of its fiduciary duty to plaintiff, breach of defendants’ fiduciary duties to plaintiff, fraud, negligent misrepresentation, tortious interference with contract and/or prospective economic advantage, and legal malpractice. Plaintiff’s allegations are based on his contention that defendants drafted certain amendments, not mentioned in the email, to expedite and facilitate his termination from the partnership. Defendants moved to dismiss the complaint under CPLR 3211(a)(1) and (a)(7).
Contrary to plaintiff’s argument, the court applied the correct standards on this motion to dismiss and did not effectively convert the motion into one for summary judgment (see Zyskind v FaceCake Mktg. Tech., Inc., 110 AD3d 444 [1st Dept 2013]). The court properly deemed the above emails that were described and quoted in the complaint itself to be documentary evidence (see Amsterdam Hospitality Group, LLC v Marshall-Alan Assoc., Inc., 120 AD3d 431, 432-433 [1st Dept 2014]).
The legal malpractice claim was correctly dismissed because, as plaintiff acknowledged in his opening brief on appeal, defendants were CWPW’s attorneys, not his (see Waggoner v Caruso, 68 AD3d 1, 5 [1st Dept 2009], affd 14 NY3d 874 ). Nor can plaintiff maintain a malpractice claim based on the fraud exception to the privity rule, since, as indicated, his fraud claim is not viable (see AG Capital Funding Partners, L.P. v State St. Bank & Trust Co., 5 NY3d 582, 595 ; Griffith v Medical Quadrangle, 5 AD3d 151, 152 [1st Dept 2004]).”