In an artificial social policy sort of way, lawyers protect lawyers. Although legal malpractice is a tort (maybe), there is still a requirement of privity. Remembering back to law school and the progression in products liability from a strict requirement of privity for a recovery from the manufacturer to strict liability, we wonder if the legal world will ever accept that any attorney who participated in a specific litigation should be responsible for departures?
Well, Tatintsian v Pryor Cashman LLP 2018 NY Slip Op 33152(U) December 10, 2018
Supreme Court, New York County Docket Number: 152022/2017 Judge: David Benjamin Cohen describes the current state of affairs.
“In this action, plaintiff Gary Tatintsian (Plaintiff) alleges that defendants Pryor Cashman
LLP (Pryor Cashman), Eric Hellige (Hellige) and Eudora Partners LLC (Eudora, along with
Pryor Cashman and Hellige, collectively, Defendants) participated in a scam perpetrated by
Mikhail Vorotyntsev (MV) to “fleece” investors, including Plaintiff. The complaint asserts four
causes of action: fraudulent inducement, aiding and abetting fraud, legal malpractice and unjust
enrichment. By the instant motion (sequence number 001), Defendants move, pursuant to CPLR
3211 (a) (1) and (a) (7), for an order dismissing all causes of action with prejudice. For the
reasons set forth below, the relief sought in the motion is granted in part and denied in part. ”
“In order to plead a legal malpractice claim, the complaint must allege “the negligence of
the attorney” and that the negligence is the “proximate cause of the loss sustained” by plaintiff
(O’Callaghan v Brunelle, 84 AD3d 581, 582 [I51 Dept 201 l][internal citations and quotation
marks omitted]). Further, a legal malpractice claim cannot be stated if there is no attorney-client
relationship between the parties (Waggoner v Caruso, 68 AD3d 1, 3 [1 51 Dept2009], affd 14
NY3d 874 ).
Plaintiff acknowledges that he is not a client of and is not in privity with Defendants, but
asserts that he may recover for losses arising from Defendants’ legal malpractice if the complaint
alleges “fraud, collusion, malicious acts or other special circumstances” (Plaintiffs opposition at
25, citing, inter alia, Estate of Schneider v Finmann, 15 NY3d 306, 308 ). In such regard,
the complaint alleges that Defendants “engaged in fraud, collusion, or malicious or tortious acts
against Plaintiff,” and as a result, “Defendants are liable to Plaintiff for legal malpractice”
(Complaint, iii! 61-62).
However, Plaintiffs allegation of “collusion” in the complaint is conclusory because he
fails to identify any collusive acts between Defendants and MV, and has neither alleged nor specifically identified any “malicious acts” on the part of Defendants. In his opposition to the
motion, Plaintiff merely alleges that because “Defendants committed fraud against him to benefit
themselves … and implicitly … Defendants secretly colluded with [MV] to misappropriate
Plaintiffs investment for Defendants’ and [MV’s] own enrichment” (Defendants’ opposition at
26-27), The foregoing allegations sound more like an unjust enrichment claim rather than a legal
malpractice claim, because the conclusory allegation of “secret collusion” is not supported by any
fact. Also, his fraud against Defendant has been dismissed, for the reasons stated above.
Accordingly, the legal malpractice claim should be dismissed (Benzemann v Citibank,
NA., 149 AD3d 586, 586 [1st Dept 2017] [absence of privity, along with conclusory allegation of
fraud and collusion, required dismissal of the legal malpractice claim]). “