We discussed Zabit v Brandometry, LLC 2026 NY Slip Op 31752(U) April 16, 2026
Supreme Court, New York County Docket Number: Index No. 656563/2021
Judge: Emily Morales-Minerva on Monday. Here is the balance of the decision.

“In this action, as undisputed at oral argument, the causes of action plaintiffs assert against law firm and attorney are as follows: (1) fraud, (2) aiding and abetting fraud, (3)
fraudulent misrepresentation, (4) fraudulent concealment, (5) aiding and abetting breach of fiduciary duty, (6) tortious interference with contract (7) civil conspiracy, and (8) legal malpractice.”

“”The elements of a cause of action to recover damages for breach of fiduciary duty are (1) the existence of a fiduciary relationship, (2) misconduct by the defendant, and
(3) damages directly caused by the defendant’s misconduct” (Baldeo v Majeed, 150 AD3d 942, 945 [2d Dept 2017], citing Dehlinger v Sani-Pine Prods. Co., Inc., 107 AD3d 659, 660 [2d Dept 2013] and Rut v Young Adult Inst., Inc., 74 AD3d 776, 777 [2d Dept 2010]). “A claim for aiding and abetting a breach of fiduciary duty requires: (1) [that a fiduciary breach its] obligations to another, (2) that the defendant knowingly induced
or participated in the breach, and (3) that plaintiff suffered damage as a result of the breach” (Baldeo, 150 AD3d at 946 [quotations and citations omitted]).

Here, as set forth above, the pleadings on their face lack any alleged facts which, accepted as true, leads to a reasonable inference that law firm and attorney “knowingly induced or participated” in Medin’s alleged breach of fiduciary duty to Zabit (see generally Sander v Winship, 57 NY2d 391, 394 [1982] [“a court is to take [allegations] as true and resolve all inferences which reasonably flow therefrom in favor of the
pleader”]; see also Leon v Martinez, 84 NY2d 83, 87 (1994]). Plaintiffs plead this element in a conclusory manner and, as all elements of this cause of action must be sufficiently pled, the Court finds it unnecessary to discuss the remaining prongs.”

“To state a cause of action for tortious interference with a contract, a plaintiff must demonstrate “the existence of a valid contract between the plaintiff and a third party, defendant’s knowledge of that contract, defendant’s intentional procurement
of the third party’s breach of the contract without justification, actual breach of the contract, and damages resulting therefrom” (330 Acquisition Co., LLC v Regency Savings
Bank, F.S.B., 293 AD2d 314, 315 [1st Dept 2002), quoting Lama Holding Co. v Smith Barney, Inc., 88 NY2d 413, 424 (1996]).

Plaintiffs do not allege anywhere in the complaint that law firm and attorney intentionally caused a breach of any of the agreements between plaintiffs and third parties. Nor do the allegations permit a reasonable inference of such. Therefore,
this cause of action is dismissed.”

“”In assessing the adequacy of a claim of … attorney malpractice, a court must first look to the relationship of the parties. [If] the relationship of the parties fails to reveal
actual privity or a relationship that otherwise closely resembles privity, no cause of action exists for negligent misrepresentation” (AG Capital Funding Partners, L.P. v. State
St. Bank & Trust Co., 5 NY3d 582, 595 [2005]). However, if the alleged malpractice is based on allegations of “fraud, collusion, malicious acts or other special circumstances”
privity is not necessary for a plaintiff to maintain the claim (id. at 595).

Here, plaintiffs do not dispute that no privity exists between them, law firm and attorney (NYSCEF Doc. No. 01, Summons and Complaint, 1 44 [“Bacon Law Group was retained by BTI to create various LLC agreements, amendments and contracts”]; see
also NYSCEF Doc. No. 09, exhibit F to summons and complaint, Engagement for Legal Services between BTI and Thomas C. Bacon and Bacon Law Group, 11 [“Our client(s): terms of engagement as well as of existing and future engagements. This Agreement
governs our (law firm and attorney’s) representation of you (BTI) and not of any other party, including any of your parent, subsidiary, affiliate or related persons … unless such party is named in the preceding paragraph” which only names BTI]
[emphasis in original]; NYSCEF Doc. No. 28, plaintiffs’ opposition to motion to dismiss, p 19 [“Zabit agrees he was never in direct privity with Bacon Law Group or Bacon himself
.”]).
Indeed, they go as far as highlighting that plaintiff William Zabit “never reviewed, discussed or signed [the engagement letter] and did not know that it existed” and that
“[t]he Bacon defendants [law firm and attorney] acknowledge that plaintiffs [William Zabit and Brandtransact Worldwide, Inc.] did not have an attorney-client relationship with them” (NYSEF Doc. No. 28, plaintiffs’ opposition to the Bacon motion to dismiss,
at 23). Plaintiffs do not even appear to assert attorney-client engagement by relationship to BTI, contending that there would need to be discovery in regard to any agency or intended benefit In any event, as law firm and attorney did not represent
Zabit individually and BTWW in any capacity, there is no dispute that the engagement letter between BTI, law firm and attorneyprovides that any malpractice claim shall be subject to arbitration in California….”