Pritisker v Zamansky, LLC  2018 NY Slip Op 32930(U)  November 19, 2018
Supreme Court, New York County Docket Number: 150595/2017 Judge: Frank P. Nervo  is the kind of legal malpractice case that legal malpractice insurers love.  It appears to be a one-off, or a pro-se case in which a checklist of the elements of legal malpractice have been overlooked, and in which prior litigation dooms the present case.

“While the court has not converted this motion into one for summary judgment, it will consider
the document plaintiff submits in opposition to the motion, his memorandum of law in order to
determine whether despite his pleading defect, he has a cause of action. ( see Guggenheimer v.
Ginzburg, id. at 275; Basis Yield Alpha Fund (Master) v. Goldman Sachs Group, Inc. 115 AD3d
128,135) The memorandum of law demonstrates that plaintiff cannot establish that his action
against AGLIC would have been successful. At page 26 of his memorandum of law, plaintiff
disputes the necessity of showing success in an action against AGLIC. He refers to any such
proof as “an empty boast.” This is an apparent concession that he has no cause of action.
Therefore, dismissal is required under CPLR 3211(a)(7).

The branch of defendants’ motion to dismiss the complaint pursuant to 3211 (a)(l) is also
granted. Defendants submit the arbitration decision denying his claim against the non-AG UC
parties. The decision shows that plaintiff made all his own investment decisions. That decision
has never been reversed and conclusively shows that plaintiff himself caused his own alleged
injury. This decision conclusively and unequivocally establishes defendants’ defense as a matter
of law. ( Warshaw Bernstein Cohen Schlesinger & Kuh, LLP v. Longmire, 106 AD3d 536, 537)
Similarly, the Second Circuit decision, albeit in dicta, that defendants submit shows that
plaintiff himself made his own investment choices and so was not influenced by AGLIC in any
manner. In addition to the decisions, the retainer agreement between plaintiff and defendants
shows that defendants representation was limited to an arbitration between plaintiff and two
other parties. Plaintiff agreed that defendants would not pursue a claim against any other party or entity. The retainer agreement precludes an action against defendants for failure to sue AGLIC. (see Hallman v. Kantor, 72 AD3d 895)

Plaintiff’s causes of action for negligence and breach of fiduciary duty are dismissed because
they are duplicative of the legal malpractice action ( Cohen v. Kachroo, id. at 513), and because,
as with the deficiency in the legal malpractice pleading, they fail to plead the facts necessary to
support them. “