Jewell Law, PLLC v Ruci 2020 NY Slip Op 33648(U) November 3, 2020
Supreme Court, New York County Docket Number: 655702/2019
Judge: Arthur F. Engoron displays some unique inductive reasoning, and some conventional legal reasoning. Breach of Fiducary duty is dismissed in an unconventional matter. Legal malpractice is more conventionally decided.
“This Court finds that the breach of fiduciary duty claim is duplicative of the legal malpractice claim as they seek identical relief, namely, damages in an amount to be determined at trial, plus interest and costs. Alphas v Smith, 147 AD3d 557, 559 (!81 Dept 2017) (breach of fiduciary duty claim was duplicative of malpractice claim as it sought similar damages). Furthermore, the actions of which Ruci complained are not within what this Court considers to be typical breach of fiduciary duty claims. Ruci’s position proves too much; it would mean that every malpractice claim would also allow a breach of fiduciary duty claim, which is not the law. ”
“Jewell claims that Ruci has failed adequately to plead legal malpractice, specifically, that Ruci has failed to allege “but for” causation, because any allegation that the court in the Underlying Action would have granted unsupervised visitation while a criminal court order of protection was in effect is impermissible speculation. That is incorrect. Here, Ruci alleges that Jewell: failed to file an emergency Order to Show Cause to commence the Underlying Action, which Ruci alleges would have expedited the Underlying Action and lessened the time missed between Ruci and his child; failed to file a Writ of Habeas Corpus, as directed by Ruci; improperly interfered with Ruci’s criminal case by pressuring Ruci to do certain things despite the fact that Jewell was not
retained to represent him in that proceeding; failed to effectuate proper and timely service in the Underlying Action prior to the initial court date, which increased the time missed between Ruci and his child; failed to secure unsupervised parenting time for Ruci at two court dates, which increased the time missed between Ruci and his child; filed frivolous Orders to Show Cause; improperly advised Ruci that it might be possible for him to take his child out of the country; and
asserted to the referee in the Underlying Action that Jewell was using electronic filing when no such electronic filing system was available in Queens County Family Court at that time. Clearly, Ruci has pleaded that but for Jewell’s actions and/or inactions in the Underlying Action, Ruci
would have been reunited with his child earlier than he was. Also, Ruci has adequately pleaded that he was denied visitation time, be it supervised or unsupervised. “