William Jacobs, et al., Plaintiffs-Appellants, v Richard L. Kay, et al., Defendants-Respondents.
3460, 117332/05
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, FIRST DEPARTMENT
2008 NY Slip Op 3710;
April 24, 2008, Decided
April 24, 2008, Entered

“After settling with the executrix their objections to the probate of their father’s will and trust, plaintiffs commenced this action against the attorneys for alleged fraudulent misrepresentation, fraudulent concealment, legal malpractice, breach of contract and for treble damages, in the preparation of those instruments. Not only does HN1 New York not recognize a right of action for tortious interference with prospective inheritance (see Vogt v Witmeyer, 87 NY2d 998, 665 N.E.2d 189, 642 N.Y.S.2d 619 [1996]), but having earlier settled their objections, plaintiffs may not now seek, in effect, to challenge indirectly the validity of the will and trust by suing these defendants with whom they had absolutely no privity.

Absent a contractual relationship between the professional and the party claiming injury, the potential for liability "is carefully circumscribed" (William Iselin & Co. v Mann Judd Landau, 71 NY2d 420, 425, 522 N.E.2d 21, 527 N.Y.S.2d 176 [1988]). [**2] A viable tort claim against a professional requires that the underlying relationship between the parties be one of contract or the bond between them so close as to be the functional equivalent of contractual privity (Ossining Union Free School Dist. v Anderson LaRocca Anderson, 73 NY2d 417, 539 N.E.2d 91, 541 N.Y.S.2d 335 [1989]). However, plaintiffs have not pleaded any facts setting forth the existence of a contractual relationship or the functional equivalent thereof between themselves and defendants. Moreover, they have no viable cause of action for treble [*2] damages under Judiciary Law § 487, since defendants’ purported deceit did not occur during the course of a pending judicial proceeding (see Costalas v Amalfitano, 305 AD2d 202, 203-204, 760 N.Y.S.2d 422 [2003].”

John Randolph Hearst, Jr., appellant, v Barbara Hearst, et al., respondents. (Index No. 06-01959)
SUPREME COURT OF NEW YORK, APPELLATE DIVISION, SECOND DEPARTMENT
2008 NY Slip Op 3590; 2008 N.Y. App. Div. LEXIS 3495
April 22, 2008, Decided

“The Supreme Court also improperly dismissed the cause of action alleging legal malpractice insofar as asserted against the Ackerman defendants. A prima facie case of legal malpractice requires proof that the attorney failed to exercise the ordinary and reasonable skill and knowledge commonly possessed by a member of the legal profession, and that the attorney’s breach of that duty proximately caused the plaintiff to sustain actual and ascertainable [**10] damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442, 867 N.E.2d 385, 835 N.Y.S.2d 534; Bauza v Livington, 40 AD3d 791, 792-793, 836 N.Y.S.2d 645; Magnacoustics, Inc. v Ostrolenk, Faber, Gerb & Soffen, 303 AD2d 561, 562, 755 N.Y.S.2d 726). Here, the plaintiff alleges that Ackerman represented both Barbara and himself, and was thereby burdened by a conflict of interest, that Ackerman aided Barbara’s misappropriation of his assets, and concealed these activities from him. Consequently, there are triable issues of fact with respect to the cause of action alleging legal malpractice (see Tabner v Drake, 9 AD3d 606, 610, 780 N.Y.S.2d 85), as well as the cause of action alleging the aiding and abetting of fraud, insofar as asserted against the Ackerman defendants.”