Lawyers are, if nothing else, inventive. A claim against another lawyer is almost always subject to legal malpractice analysis, and with that, legal malpractice standards. Claims of fraud, breach of contract, breach of fiduciary duty, intentional infliction of emotional distress, libel, slander, prima facie tort, and even more. Nevertheless, courts almost always revert to the mean, and apply legal malpractice standards. Lewis v Pierce Bainbridge Beck Price Hecht LLP 2020 NY Slip Op 31468(U) May 21, 2020 Supreme Court, New York County Docket Number: 155686/2019 Judge: Andrea Masley is no exception.
“This is a defamation action initiated by plaintiff Donald Lewis on June 7, 2019 against his former law firm, defendant Pierce Bainbridge Beck Price & Hecht LLP (PB). (NYSCEF 2, Complaint.) In the FAC, plaintiff alleges the following against the Putney Defendants: aiding and abetting defamation (second cause of action, ,m 230-244), intentional infliction of
emotional distress (fourth cause of action ,m 251-263), and prima facie tort (sixth cause of action, ~~279-285). 2 (NYSCEF 37.)
Initially, the Putney Defendants were not named as parties in this defamation action, though plaintiff expressly incorporates by reference the allegations from his New York action
(Index No. 652931/2019) initiated on May 16, 2019, against PB and Putney among others (NY Action /.)(Id.; NYSCEF 37, FAG ~3.) In NY Action I, plaintiff alleged aiding and
abetting breach of fiduciary duty against Yim; tortious interference with contract against the Putney Defendants; and legal malpractice against the Putney Defendants. (NY Action I,
NYSCEF 79.) ”
“Like NY Action I, this action must be dismissed against the Putney Defendants which are entitled to immunity “under the shield afforded attorneys in advising their clients, … in
the absence of fraud, collusion, malice or bad faith.” (Beatie v OeLong, 164 AD2d 104, 109 [1st Dept 1990] [citations omitted].) It is in the public interest that attorneys are not subject
to civil liability for doing their jobs ‘”when performed in good faith and for the honest purpose of protecting the interests of their clients.”‘ (Hahn v Wylie, 54 AD2d 629, 629 [1st Dept
1976].) Here, the Putney Defendants were engaged to investigate an employee’s allegations against plaintiff and to issue a report regarding that investigation, which are
within the scope of their duties as attorneys. (Art Capital Group, LLC v Neuhaus, 70 AD3d 605, 609 [1st Dept 2010] [immunity applied on motion to dismiss claims against attorney
who documented and negotiated a loan transaction and office space because these were within the scope of defendant’s duties as an attorney and giving advise that may result in
breach of contract is not enumerated as exception to immunity].) These are also precisely the activities about which plaintiff complains here.
However, despite a 70-page complaint with 286 paragraphs, not including subparts, plaintiffs claims against the Putney Defendants are woefully insufficient for application of
the exception to immunity. Repeating the words “fraud,” “collusion,” and “malice” does not make it so. It is conclusory, and, thus, is not sufficient. (See Abrams v Pecile, 84 AD3d
618, 619 [1st Dept 2011 ].) Moreover, the bad act here is PB’s use of the report in the LA Action and the press, with which plaintiff takes issue, to defame, discredit and silence
plaintiff. However, the Putney Defendants’ actions to which plaintiff objects are limited to investigating plaintiff’s alleged harassment and drafting the report. (See Peci/e v Titan
Capital Group, LLC, 96 AD3d 543, 544 (1st Dept 2012), leave to appeal denied, 20 NY2d 856 [2013].)
As additional support in opposing the Putney Defendants’ assertion of immunity in this action, plaintiff relies on the affirmation of Peter C. Contino, who represents the Putney
Defendants in this action and NY Action I, which was filed in NY Action I. (NY Action I, NYSCEF 21, Contino Affirmation.) In its motion to dismiss the amended complaint in NY
Action I, the Putney Defendants submitted the LA Action complaint arid quote from it to support their contention that their investigation terminated on November 30, 2018.
However, the Contino affirmation does not, either alone or in conjunction with the other alleged acts, create the fraud, collusion, malicious acts or other special circumstances that
are missing from the FAC. Indeed, it is entitled to an absolute privilege as a relevant statement made by attorneys in connection with a proceeding before a court. (Front, Inc. v
Khalil, 24 NY3d 713, 718 [2015].) “