Looking back at Weinberg v Sultan 2016 NY Slip Op 05939 [142 AD3d 767] September 1, 2016
the question before the Appellate Division, First Department seems to have been was whether plaintiff was duped or not, and whether her former son-in-law took a large “consulting fee” and did so to her detriment. Whether former sons-in-law can be trusted in general, in this case the AD dismissed all legal malpractice claims against defendants for lack of proximate cause.
“The motion court correctly dismissed the third and fourth causes of action. We have some concerns over the manner in which the sale of the building owned by the elderly plaintiff was orchestrated by defendant Kaminsky, her former son-in-law. Kaminsky, an attorney, procured the purchaser and referred plaintiff to the attorneys who represented her in the transaction and assisted her at the closing. It is unclear from the record whether these attorneys ever met with plaintiff before the closing or what role defendant Asher, the self-described “estate attorney,” played; that is, what advice, if any, he provided regarding her estate. It is also unclear how the purchase price for the building was arrived at and whether the representations made to plaintiff regarding the sale proceeds were accurate. Also, Kaminsky collected a $200,000 consulting fee for his work on the transaction, paid by the buyer.
Nonetheless, the amended complaint is barebones. It fails to allege any “material misrepresentation,” which is a required element of a fraud claim (see Eurycleia Partners, LP v Seward & Kissel, LLP, 12 NY3d 553, 559 ; Nicosia v Board of Mgrs. of the Weber House Condominium, 77 AD3d 455, 456 [1st Dept 2010]). Further, plaintiff does not allege how defendant purchaser Linda Salamon and her company, defendant 22 West 30th St. Properties, LLC (together Salamon), exerted any undue influence over plaintiff (see Franklin v Winard, 199 AD2d 220, 220 [1st Dept 1993]) or coerced her into a transaction that she alleges made no [*2]economic sense. The amended complaint also failed to plead the fraud and undue influence claims with sufficient particularity, as required by CPLR 3016 (b) (see id.). In addition, there is no private right of action against an attorney or law firm for violations of the Code of Professional Responsibility or disciplinary rules (Kantor v Bernstein, 225 AD2d 500, 501 [1st Dept 1996]; see Schwartz v Olshan Grundman Frome & Rosenzweig, 302 AD2d 193, 199 [1st Dept 2003]). Plaintiff failed to address her breach of contract claim in her opening appellate brief, so it can be deemed abandoned (see Bridgers v West 82nd St. Owners Corp., 114 AD3d 606, 607 ). In any event, plaintiff provides no indication of how the contract was breached.”
“The motion court correctly granted the motions for summary judgment dismissing the first and second causes of action, for legal malpractice. The moving defendants made a prima facie showing of a lack of proximate cause, which is an essential element of a legal malpractice claim (see Sabalza v Salgado, 85 AD3d 436, 437 [1st Dept 2011]; Brooks v Lewin, 21 AD3d 731, 734 [1st Dept 2005], lv denied 6 NY3d 713 ). In opposition, plaintiff failed to raise a triable issue of fact, since she merely speculated that the building she formerly owned, which was in foreclosure at the time of its sale, could have been sold for its appraised value (see Heritage Partners, LLC v Stroock & Stroock & Lavan LLP, 133 AD3d 428, 428-429 [1st Dept 2015], lv denied 27 NY3d 904 ).”