We originally reported this case on 9/28. Here is a well written decision concerning Akin Gump in which some causes of action are dismissed. Tott, Contract, Fraud, Fiduciaries…how do all of these different theories of liablitiy interact? Read on:
"Defendant’s motion, pursuant to CPLR 3211 (a) (7), to dismiss plaintiffs’ second, fifth and ninth causes of action, for gross negligence, the third cause of action for negligent misrepresentation and the seventh cause of action, for breach of fiduciary duty, as redundant of the legal malpractice claims, is granted. It is well settled, in this Department, that gross negligence, negligent misrepresentation, and breach of fiduciary duty claims, arising out of the same set of operative Facts, and seeking the same damages or relief, as a viable legal malpractice claim, are redundant, and subject to dismissal pursuant to CPLR 3211 (a) (7) (see Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 AD3d 267 [1st Dept 2004]; InKine Pharmaceutical Co., Inc. v. Coleman, 305 AD2d 151 [1st Dept 2003]; Mecca v. Shang, 258 AD2d 569 [2d Dept 1999]). As accurately outlined by defendant, the second cause of action asserted in plaintiffs’ complaint for gross negligence, and the third cause of action for negligent misrepresentation, arise out of the identical Facts, and seek the same relief as plaintiffs’ first cause of action for malpractice. The fifth cause of action for gross negligence and the seventh cause of action for breach of fiduciary duty arise out of the same operative Facts, and seek the same relief, as the fourth cause of action for malpractice, and the ninth cause of action for gross negligence arises out of the same Facts, and asserts damages identical to the Facts and damages alleged under the eighth cause of action for legal malpractice. Plaintiffs’ argument, that the claims should be reviewed under Texas law, does not mandate a different result (see Camp v. RCW & Co., Inc., 2007 WL 1306841, *5 [SD Tex 2007], quoting Goffney v. Rabson, 56 SW 3d 186, 190 [Tex App, Houston 2001]["Texas law does not permit a plaintiff to divide or fracture her legal malpractice claims into additional causes of action"]; see also Aiken v. Hancock, 115 SW 3d 26, 28 [Tex App, San Antonio 2002]; Ersek v. Davis & Davis, P.C., 69 SW 3d 268, 274 [Tex App, Austin 2002]). Plaintiffs’ request for leave to amend the eighth cause of action is denied, as the proposed amendment does not cure the redundancy (see Feldman v. Jasne, 294 AD2d 307 [1st Dept 2002]; Bencivenga & Co. v. Phyfe, 210 AD2d 22 [1st Dept 1994]).
That portion of defendants’ motion which seeks partial dismissal of plaintiffs’ sixth cause of action for fraud, on documentary evidence, pursuant to CPLR 3211 (a) (1), is denied. On a motion pursuant to 3211 (a) (1), the court must accept the complaint’s factual allegations as true, according plaintiffs the benefit of every possible favorable inference, and dismissal is warranted only if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law (Arnav Indus. Inc., Retirement Trust v. Brown, Raysman, Millstein, Felder & Steiner, LLP, 96 NY2d 300, 303 [2001]; Leon v. Martinez, 84 NY2d 83, 87-88 [1994]; Weil,, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 AD3d at 271-71). The documentary evidence relied upon by the defendant in this matter consists of a June 28, 2004 letter executed by McBride on behalf of the Veras entities, and by McBride, Larson and Virginia in their individual capacities, acknowledging the existence of potential conflicts of interest, including but not limited to those alleged in the instant complaint. Defendants also annex various drafts of the letter. All drafts were prepared in or around June 2004, after the individual plaintiffs retained independent counsel.
The document, executed nearly a year after the investigations commenced, has little probative value with respect to plaintiffs’ allegations that, when Akin Gump undertook plaintiffs’ defense in or around September 2003, it knowingly and purposefully failed to disclose inherent and nonwaivable conflicts of interest, or with respect to acts occurring prior to the negotiation or execution of the letter. Plaintiffs’ allegations also raise issues of fact with respect to whether the consent letter is effective in these circumstances (see Kelly v. Greason, 23 NY2d 368, 378-79 [1968][in certain situations, there can be no effective consent]; see also, e.g. Parklex Assoc. v. Parklex Assoc., 15 Misc 3d 1125(A), 2007 WL 1203617, *5 [Sup Ct, Kings County 2007][attorneys could not rely on purported waiver of conflict of interest where such conflict could subject an attorney to disciplinary action under DR-105, 22 NYCRR §1200.24(c)]; Booth v. Continental Ins. Co., 167 Misc 2d 429, 439 [Sup Ct, Westchester County 1995][full disclosure and consent does not insulate an attorney where the conflict of interest affects or appears to affect the attorney’s obligations]). Finally, in light of defendant’s failure to demonstrate a right to relief based upon documentary evidence, it is not necessary, at this time, to address the issues of fact raised by plaintiffs’ belated claims of coercion."