After years of circuitous meandering the Raghavendra action against Columbia University, its attorney and his own attorney has ended with a First Department decision in  Raghavendra v Brill,  2015 NY Slip Op 03774   Decided on May 5, 2015.   The take away from this case is that an attorney fee dispute/resolution will often moot the parallel legal malpractice case, that it’s almost impossible successfully to sue your opponent’s attorney and that, in general, it makes more sense to try to collect from the original wrongdoer than from the attorneys afterwards.

“Plaintiff’s claims against Stober relating to alleged wrongdoing in connection with the negotiation and execution of the July 2009 global settlement agreement of three related federal actions sound in legal malpractice, and are barred by the doctrine of res judicata. The District Court expressly held, in a final order entered upon plaintiff’s challenge to a fee award to Stober, that “the retainer agreement was valid and enforceable” and that Stober was entitled to a fee equal to “one-third of the settlement amount, less $10,000.00 for the up-front” retainer fee paid by plaintiff (Raghavendra v Trustees of Columbia Univ., 2012 WL 3778823, *5, *7, 2012 US Dist LEXIS 124598, *16, *21 [SD NY 2012]). Thus, the District Court necessarily concluded that there was no legal malpractice, and plaintiff is barred from relitigating the malpractice claims (Summit Solomon & Feldesman v Matalon, 216 AD2d 91 [1st Dept 1995], lv denied 86 NY2d 711 [1995]).

Plaintiff’s claims against Stober for breach of the settlement agreement and tortious interference therewith were correctly dismissed because Stober is not a party to the settlement agreement, and plaintiff cannot establish that Columbia (the counterparty to the settlement agreement) breached the agreement, a necessary element of the tortious interference claim. The District Court ruled that Columbia is not yet under an obligation to pay the settlement amount,[*2]because, among other things, plaintiff has refused to render his own performance by executing a general release, as ordered by the District Court. The Second Circuit affirmed the District Court’s finding that the settlement agreement was valid and enforceable (see Raghavendra v Trustees of Columbia Univ., 434 Fed Appx 31 [2d Cir 2011]). Accordingly, the causes of action against Stober for breach of and tortious interference with the settlement agreement are barred by the doctrine of res judicata (Englert v Schaffer, 61 AD3d 1362 [4th Dept 2009]).

Because he cannot establish that there has been any breach, plaintiff’s claims against Columbia for breach of or tortious interference with the settlement agreement were correctly dismissed. The doctrines of res judicata and collateral estoppel preclude plaintiff from asserting his claims of fraud and abuse of process and aiding and abetting fraud and abuse of process. The Second Circuit’s express holding that the settlement agreement is valid and enforceable disposes of plaintiff’s claims that it was reached through oppressive means or is otherwise unenforceable.

Plaintiff’s claims against Proskauer overlap with or are derivative of his claims against Columbia, and were correctly dismissed for the same reasons. Plaintiff did not have an attorney-client relationship with Proskauer (see United States Fire Ins. Co. v Raia, 94 AD3d 749 [2d Dept 2012]). Nor can he establish any “fraud, collusion, malicious acts, or other special circumstances” necessary to impose liability upon an attorney for harm suffered by parties not in privity with the attorney (see Raia, 94 AD3d at 751).”