Ripa v Petrosyants 2019 NY Slip Op 32638(U) August 15, 2019 Supreme Court, Kings County Docket Number: 510658/17 restates the age old principle that one may not successfully sue an attorney unless there was an attorney-client relationship, or something very, very close to it. This was a restaurant investment gone bad. Judge Leon Ruchelsman picks up:
“To succeed on a claim for.legal malpractice it must be shown that the attorney failed to act with the “ordinary reasonable skill and knowledge commonly possessed by a member of the legal professional (Darby & Darby, P.C. v; VST International, Inc., 95 NY2d 308, 716 NYS2d 378 ). As a preliminary matter, of course, there must be evidence of an attorney client: relationship (Wei Cheng Chang v. Pi, 288 AD2d 378, 733 NYS2d 471 [2d Dept., 2001]) . A client’s unilateral belief that an attorney client
relationship existed is insufficient to establish such relationship
even though a formal retainer agreement is not required (Terio v.
Spodek, 63 AD3d 719, 880 NYS2d 679 [2d Dept., 2015]). Thus, “to
prove an attorney-client relationship, there must be an explicit
undertaking “to perform a specific task” (Nelson v. Roth, 69 AD3d
912, 893 NYS2d 605 [2d Dept., 2010]).
The plaintiff has asserted an attorney client relationship existed but has failed to present any evidence supporting that contention. The plaintiff asserts that Ofshtein “billed several thousand dollars for legal services” (Affirmation in Opposition, 9). However, the plaintiff has not presented any evidence of any such bills that would conclusively substantiate the allegation contained in the complaint. Thus, ‘that allegation is conclusory
and, unsupported. Consequently, the plaintiff has failed to establish an attorney client relationship and consequently the motion to dismiss the malpractice claim is granted.”