Attorneys irritate people all the time, and irritated people act. Dawson v Adam Leitman Bailey P.C. 2018 NY Slip Op 30224(U) February 8, 2018 Supreme Court, New York County
Docket Number: 152112/2017 Judge: Robert D. Kalish is an example of how irritation can lead to litigation which fails.
“Dawson alleges that he resided from August 29, 2015, to ·August 28, 2016, in a building located at l 00 Maiden Lane, New York, New York 10038 and owned by non-party Lalezarian Properties LLC (“Lalezarian”). Dawson further alleges that Desiderio emailed Bailey and Dawson on September 7, 2016, attaching a letter from Bailey to Dawson dated September 7, 2016. Dawson further alleges that the letter accused Dawson of creating and owning “lalezarianfraud.com” (specifically, the letter states that “Lalezarian has reason to believe … that [Dawson is] the creator and owner”) and using the website to disseminate false and defamatory statements. (Complaint~ 11.) The letter then allegedly demanded that Dawson take the website down and stated that legal action would commence against Dawson if this was not done.
Dawson alleges that the allegations in the September 7, 2016 letter are “materially false” and unsubstantiated (Id. ~ 12.) ”
“Dawson asserts four causes of action in the Complaint. The Court dismissed the first, third, and fourth causes of action as against Defendants per its decision on the record at the oral argument for the reasons set forth below.
The first cause of action, alleging violations under Judiciary Law § 487, fails to state a cause of action because Defendants did not commence any litigation. Judiciary Law § 487 states that:
“An attorney or counselor who:
1. Is guilty of any deceit or collusion, or consents to any deceit or collusion,
with intent to deceive the court or any party; or,
2. Wilfully delays his client’s suit with a view to his own gain; or, wilfully
receives any money or allowance for or on account of any money which he
has not laid out, or becomes answerable for,
Is guilty of a misdemeanor, and in addition to the punishment prescribed
therefor by the penal law, he forfeits to the party injured treble damages, to
be recovered in a civil action.”
Here, any alleged deceptive conduct by Defendants did not occur during a pending proceeding in which Dawson was a party. (See Sun Graphics Corp. v Levy, Davis & Maher, LLP, 94 AD3d 669, 669 [I st Dept 2012], citing Stanski v Ezersky, 228 AD2d 311, 313 [1st Dept 1996].) As such, the first cause of action fails to state a cause of action and is dismissed.
The third cause of action, alleging malpractice, is not applicable because there is no privity or near-privity between Dawson and Defendants. “New York courts impose a strict privity requirement to claims of legal malpractice; an attorney is not liable to a third party for negligence in performing services on behalf of its client. Thus, absent an attorney-client relationship, a cause of action for legal malpractice cannot be stated.” (Federal Ins. Co. v North American Specialty Ins. Co., 47 AD3d 52, 59 [1st Dept 2007].) Here, Dawson and Defendants were not in an attorney-client relationship, and no such relationship is alleged, nor can one be gleaned from the Complaint. As such, the third cause of action fails to state a cause of action and is dismissed.
The fourth cause of action, alleging intentional infliction of emotional distress, is duplicative of Dawson’s second cause of action, for defamation. (See Matthaus v Hadjedj, 148 AD3d 425, 425 [I st Dept 2017].) Even assuming for the sake of argument that Dawson alleges emotional distress caused by something other than Defendants’ alleged defamation (as discussed more fully below), Dawson still has no cause of action for intentional infliction of emotional distress.”