Sometimes, Supreme Court of the State of New York acts like an appellate court in legal malpractice cases.  In Pasquale v Heppt 2013 NY Slip Op 31560(U) July 15, 2013
Supreme Court, New York County Docket Number: 112890/2011 Judge: Doris Ling-Cohan we see one such example.  Note that plaintiff argues that a decision of Queens County shows that the attorney committed legal malpractice, and Judge Ling-Cohan comes to the completely opposite conclusion, acting, in essence as an appellate court.

"This action arises out of the defendant’s legal representation of plaintiff Lillian De Pasquale (Lillian) in an underlying action involving the disputed estate of her late husband, Joseph De Pasquale (Joseph), as well as the legal representation of plaintiff Vincent De Pasquale (Vincent), son of Lillian, for employment and contract claims in a separate matter.

Lillian was the executrix of Joseph’s estate. In 2005, Daniel De Pasquale (Daniel), brother of Joseph, commenced an action against Lillian in Supreme Court, Queens County (the Estate Action). In March 2009, Lillian agreed to settle the Estate Action with Daniel, and the settlement was entered into on the record before the court. In April 2009, Lillian and Vincent engaged the legal services of defendant, and allegedly paid him a retainer of $5,000 each, for a total of $10,000. Lillian allegedly retained defendant, a f t e r a settlement was reached in the Estate Action, which was entered on the record, to complete the settlement of the Estate Action, while Vincent allegedly
retained defendant to research and litigate claims relating to employment and contractual issues in a separate matter.

After judgment was entered, the Honorable Orin R Kitzes,Justice of the Supreme Court, Queens County, denied Lillian’s order to show cause to vacate the settlement, and stated in his decision that the proper procedure was to bring a plenary action. Lillian alleges that she had to pay post-judgment statutory interest on the judgment, as well as statutory poundage to the Marshal, as a result of defendant’s act of filing an order to show cause, rather than filing a plenary action. Lillian alleges claims of legal malpractice and breach of contract.

In regard to Lillian’s claim for legal malpractice,the documentary evidence presented by defendant establishes that filing an order to show cause instead of a plenary action was not the proximate cause of Lillian’s damages. Regardless of whether defendant filed a plenary action or not, the settlement payment was due June 8, 2009. After payment was not made on that date, as stated by Justice Kitzes, the plaintiff in the Estate Action engaged the services of the Marshal after taking "various actions to compel [Lillian] to appear for depositions to determine her assets and for those assets to not be dissipated” (Furman affirmation in support of motion to dismiss, exhibit E). Thus,
it was not the filing of an order to show cause versus a plenary action, which caused the poundage owed to the Marshal, rather, it was Lillian’s failure to timely pay the settlement amount, and
the actions of Lillian afterwards, which caused the poundage and interest to accrue. It is noted that"[s]tipulations of settlement are favored by the courts and not lightly cast
aside … This is all the more so in the case of ‘open court’ stipulations … within CPLR 2104, where strict enforcement not only serves the interest of efficient dispute resolution but also is essential to the management of court calendars and integrity of the litigation process.  Only where there is a cause sufficient to invalidate a contract, such as fraud, collusion, mistake or accident, will a party be relieved from the consequences of a stipulation made during litigation.. .". Hallock v. State of New York, 64 NY2d 224, 230 (1984) (citations omitted). Thus, Lillian’s claim for legal malpractice is dismissed."
Only where there is cause sufficient

Violation of a disciplinary rule alone is insufficient to uphold a legal malpractice cause of action.  We see, in Schlam Stone & Dolan, LLP v Poch   2013 NY Slip Op 51176(U)   Decided on July 9, 2013   Supreme Court, New York County   Hagler, J. how a cause of action for legal malpractice founders on the inability to link the violation with ascertainable damages. 
 

"Arfa and Shpigel were members of various entities that owned and managed various properties in the Bronx, New York. They were the sole members and owners of Ocelot Capital Management LLC ("OCM"). (Exhibit "A" attached to the Affidavit of Howard R. Poch, sworn to on December 23, 2011, in Opposition to the Motion ["Poch Aff."].) OCM partnered with Eldan-Tech Inc. ("Eldan") to form Ocelot Portfolio Holdings LLC ("Ocelot Portfolio") to pursue real estate ventures. Eldan retained an eighty percent interest and OCM had a twenty percent interest in Ocelot Portfolio. However, OCM was the managing member of Ocelot Portfolio. (Id.) Ocelot Portfolio was sole member and owner of entities known as OCG I, LLC, ("OCG I") and OCG V, LLC ("OCG V"). OCG I owned 1268 Stratford Avenue, Bronx, New York, and OCG V owned 1524 Leland Avenue, Bronx, New York. (Exhibit "B" attached to the Poch Aff.) Ocelot Properties Management, Inc. ("OPM"), was the entity that managed the properties for OCG I and OCG V. Ocelot Capital Group, LLC ("OCG") owned OPM, which was controlled solely by Arfa and Shpigel. (Exhibit "C" attached to the Poch Aff.) "

"In late 2007, Shafir had discussions with Poch to retain him as OCM’s landlord-tenant counsel. (Exhibit "E" attached to the Poch Aff.) The negotiations continued in the beginning of 2008, when the parties finally agreed via e-mail to Poch’s retention at $5,500 per month to handle all of OCM’s landlord-tenant disputes. (Exhibit "G" attached to the Poch Aff.) However, no formal written retainer agreement was executed by the parties.

Poch then took over the old inventory of cases and started new ones. The custom and practice between the parties was that Poch communicated with Mendez and Aryeh on these cases. (Exhibits "H," "I," and "M" attached to the Poch Aff.) As part of his duties, Poch defended the various OCG entities in proceedings in Housing Court that the Department of Housing and Preservation and Development of the City of New York ("HPD") brought against them to repair certain violations in various buildings ("HP Proceedings"). Poch settled these HP Proceedings with consent orders requiring payment to HPD of civil penalties and fines by a date certain which would increase ten-fold if not timely paid. Poch advised Mendez and Aryeh of at least four defaults in payment and resulting increased penalties. (Exhibits "O" and "P" attached to the Poch Aff.) "

"In this case, plaintiffs mainly rely on the uncontroverted fact that Poch never communicated directly with Arfa and Shpigel before executing the Consent Orders in the HP Proceedings. In support thereof, plaintiffs offer the expert opinion of Bruce Green, Esq. ("Green"), who opines that Poch’s failure to communicate directly with Arfa and Shpigel violated the former Disciplinary Rule 6-101, which consequently resulted in a breach of his duty or negligence. Plaintiffs conclude that Poch’s failure to communicate itself constitutes legal malpractice. While Poch’s failure to communicate directly with Arfa and Shpigel may have been unwise in hindsight, or said conduct may have even been violative of a disciplinary rule, that alone is insufficient to give rise to an actionable cause of action. (Schwartz v Olshan Grundman Frome & Rosenzweig, 302 AD2d 193 [1st Dept 2003].)

Indirect communication may have been acceptable under these circumstances as defendants allege that there was a prior custom and practice wherein Arfa and Shpigel specifically delegated all communications with Poch to their designated agents, Shafir and Aryeh. It is noteworthy that Arfa and Shpigel’s designated agents forwarded the petitions, which included them as individual respondents, to Poch to seemingly defend the respondents in the HP Proceedings. It is common and customary in landlord-tenant practice, for the same attorney (i.e., Poch), to represent both the corporate respondents (e.g., OCG I and OCG V), and related individual respondents such as corporate officers or agents acting in their official duties (i.e., Arfa and Shpigel), in HP Proceedings. (Affidavit of Greg Calabro, Esq., dated December 23, 2011 ["Calabro Aff."] at ¶ 6). (See, also, Cooke v Laidlaw Adams & Peck, Inc., 126 AD2d 453 [1st Dept 1987].) At the very least, Arfa and [*5]Shpigel "ratified the authority of Poch to enter into the consent order[s] by receiving the benefit of its terms and failing to raise any objection for more than one year from the date of the order[s]." (Orders of the Appellate Term, First Department decided April 21, 2011, 2011 NY Slip Op 50707[U] and 2011 NY Slip Op 50708[U], attached as Exhibit "O" to the Hitchcock Aff.) As such, Poch may have been permitted to communicate through intermediaries rather than in a direct manner. "

"Plaintiffs also have failed to demonstrate the second element of proximate cause. They have failed to demonstrate by expert or any other testimony that "but for" the defendants’ alleged negligence Arfa and Shpigel would have obtained a favorable result or not sustained damages. On this limited record, it appears that entry of judgments against Arfa and Shpigel occurred as a result of OCG I and OCG V’s failure to correct hundreds of violations and pay negotiated civil penalties as promised in the Consent Orders. HPD obtained personal liability against Arfa and Shpigel for failure to correct housing violations because the term "owner" is broadly construed as any person who is directly or indirectly control of the subject building as defined in Multiple Dwelling Law § 4(44) and the Housing Maintenance Code Section 27-2004(45). Therefore, personal liability may attach to a corporate officer who is construed to be an agent irrespective if the officer is or is not involved with the operation of the subject building. This is a strong motivating factor to quickly correct violations or the officers may be exposed to personal liability notwithstanding the usual corporate protections. In other words, responsible officers can not turn a blind eye or hide behind a corporate shield, but they must timely correct violations that are deemed a danger to life, health or safety. (Dept. of Housing Preservation and Development of the City of New York v Livingston, 169 Misc 2d 660 [App Term 2d Dept 1996]; Dept. of Housing Preservation and Development of the City of New York v Chana Realty Corp., NYLJ, June 7, 1993 [App Term 1st Dept].) Moreover, plaintiffs do not address a glaring inconsistency in their argument in that, had Poch not appeared for Arfa and Shpigel in the HP Proceedings, a default judgment would nonetheless have been entered against them due to their failure to appear. (Calabro Aff., at ¶ 11.) "

Plaintiff owes three banks, and one of them is really trying to recover its money.    Plaintiff recently transferred his home ownership to his wife.  Plaintiff goes to an attorney to discuss how to shield an upcoming inheritance from his father.  The attorney is willing to take two of the three cases, but not the third, because it represents the bank which is really trying to recover its money.  Plaintiff discloses all his financials to the attorney.

When another attorney is able to settle the bank debt for 35%, all seems good.  Then the bank calls and says, "no deal,"  It seems that they know about the house and the inheritance.  How?

 In  Rubinstein v Kriss & Feurstein  2013 NY Slip Op 31575(U)  July 12, 2013  Sup Ct, NY County
Docket Number: 653136/12  Judge: Saliann Scarpulla we see plaintiff lose the case. 

"1. Negligence
In the first cause of action, Plaintiff alleges negligence based on Defendants’ violation of Rule 1.6 of the Rules of Professional Conduct. I grant Defendants’ motion to dismiss this claim. A private cause of action cannot be based on a violation of the professional rules of conduct. Weintraub v. Phillips, Nizer, Benjamin, Krim & Balian, 172 A.D.2d 254, 254 (1 st Dep’t 1991). 

2. Legal Malpractice
To prevail in a legal malpractice action, a plaintiff must demonstrate that he or she would have succeeded on the merits of the underlying action "but for" the attorney’s negligence. Aquino v. Kuczinski, Vila & Assoc., P.c., 39 A.D.3d 216,218 (lst Dep’t 2007).
Here, I grant Defendants’ motion to dismiss the legal malpractice claim. Based on the documentary evidence and affidavits submitted, Defendants demonstrated that Plaintiff does not have a cause of action for legal malpractice because Defendants did not reveal any confidential information about Plaintiff to Valley National Bank. Defendants submitted an affidavit from Valley National Bank’s vice president David Jacques, in which Jacques states that the bank’s knowledge of Plaintiffs financial situation came from search of public records, conversations with former employees, or information provided Plaintiff himself. Defendants also demonstrated that the information about Plaintiffs house and the inheritance from his father was available in public records prior to the initial client meeting between Plaintiff and Defendants on April 23, 2010.
Plaintiff claims that issues of fact exist as to whether Skurman learned the information about his financial situation from Defendants. However, Plaintiff fails to raise a material issue of fact. Although Schoenwald stated in his affidavit that Valley National Bank’s lawyer Paul Skurman informed him over the phone that "he had heard that Mr. Rubinstein [Plaintiff] had transferred his house into his wife’s name and was expecting an inheritance from his fathers estate" – this statement does not in any way establish that Skurman learned this information from Defendants. Plaintiffs allegation  that Defendants revealed confidential information to Valley National Bank is vague and conclusory, and therefore his legal malpractice claim must be dismissed. Lester v. Braue, 25 A.D.3d 769, 769 (Ist Dep’t 2006).

For the above reasons, I grant Defendants’ motion to dismiss the second cause of action for legal malpractice.
 

3. Breach of Fiduciary Duty
An "attorney stands in a fiduciary relationship to the client which relationship is imbued with ultimate trust and confidence that imposes a set of special and unique duties, such as maintaining confidentiality." Beltrone v. Gen. Schuyler & Co., 252 A.D.2d 640, 641 (3d Dep’t 1998); Ulico Cas. Co. v. Wilson, Elser, Moskowitz, Edelman & Dicker, 56 A.D.3d 1,9 (Ist Dep’t 2008).
Here, I grant the Defendants’ motion to dismiss the breach of fiduciary claim because it is duplicative of the legal malpractice claim. Plaintiff claims that Defendants breached their fiduciary duties by revealing confidential information and he seeks economic damages resulting from the breach. This is a duplicative claim that must be dismissed because it is based on the same allegations as the legal malpractice claim and seeks identical relief. Nevelson v. Carro, Spanbock, Kaster & Cuiffo, 290 A.D.2d 399, 400 (Ist Dep’t 2002)."

Some of the defendants ended up in Federal prison, and some ended up being sued.  Plaintiff ended up owing on a mortgage and not owning the house.  It’s all fallout of the mortgage crisis and now will go to trial.  Defendant attorney Dash was suspended for 5 years and the AD found that he co mingled his IOLA funds and aided a suspended attorney in the practice of law.

It’s a mess.  Weston v 35 Plank Rd Realty Corp.  2013 NY Slip Op 31417(U)  July 2, 2013
Supreme Court, Richmond County  Docket Number: 104141/08  Judge: Joseph J. Maltese  "In this case the plaintiff was purportedly approached by Simon to help prevent a bank from foreclosing on property owned by the defendant Doud Elder. The plaintiff states that she never had any dealings with Doud Elder. In connection with this transaction, the plaintiff was found to qualify for a mortgage. Once it was determined that the plaintiff could qualify for a home loan, Home Savers promised payment in the amount of $10,000 to the plaintiff for her participation. According to the plaintiff she would obtain a mortgage for the purchase of Doud Elder’s home at 35 Plank Road, Staten Island, New York. Thereafter, pursuant to a side agreement executed at the closing Home Savers or Elder would make the mortgage payments.

The home closing took place on February 3, 2006. The defendant, Argent Mortgage Company, LLC, (“Argent”) provided and recorded a mortgage on the property. However, the defendant Reliant Abstract & Settlement Corp., failed to record the deed transferring 35 Plank Road, Staten Island, New York from Doud Elder to Lisa Weston. While Argent issued a mortgage in the name of Lisa Weston, not one payments has been made on that account. As a result of the foregoing facts, Lisa Weston remains financially obligated on the mortgage, but does not have a recorded ownership in the property. Consequently, Doud Elder continues to reside in the premises and not pay a mortgage. Furthermore, without being a record owner of the property, Weston is unable to evict Elder from the premises.

The Dash Defendants do not dispute that a fiduciary duty existed with the plaintiff. Instead, the Dash Defendants argue that plaintiff has not provided any evidence that constitute a breach of fiduciary duty. A breach of fiduciary duty arises from the violation of a relationship of trust and confidence.6 Here, Dash’s own testimony causes doubt as to whether he fully prepared  to conduct the real estate closing at issue here. Consequently, this cause of action must stand. The plaintiff’s nineteenth cause of action for legal malpractice requires a showing that the defendant attorney failed to exercise the ordinary reasonable skill and establish that the defendant attorney failed to exercise the ordinary 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 damages.7 Once again, the statements of Jan Dash during his deposition raise a question as to whether he properly conducted the real estate closing. Consequently, this cause of action must stand."

Caputo v Palermo, Palermo, & Tuohy, P.C.; 2013 NY Slip Op 31543(U) July 2, 2013
Sup Ct, Suffolk County Docket Number: 08-45481 Judge: Arthur G. Pitts is a case that could support a whole years trial/practice class.  It discusses in sharp detail issues of the standards of CPLR 3211, Legal Malpractice, Notices of Claim, obligations of an attorney to commence an action, Cruise ship releases, waivers, venue maritime law, proper standards of CPLR 3212, use of out-of-state affidavits, experts in legal malpractice, comparative negligence and much more.

For a thorough review of the law on all of these issues, we suggest a thorough reading of the case.

What would happen if it were easy to sue the other side’s attorney?  Presumably, after every litigation, the losing party would sue the winning party’s attorney.  This is not a desirable goal, because it would simply lead to double/treble endless litigation.  For this reason, the rule of privity requires that except in the most extreme circumstances, you must have had a contractual relationship with the attorney you sue.

So it goes in Lombardi v Lombardi   2013 NY Slip Op 31478(U)  July 1, 2013 Supreme Court, Suffolk County  Docket Number: 12-24554  Judge: Hector D. LaSalle.  Wife sues Husband to overturn an antenuptual agreement, and sues his attorney too. 

"“In an action to recover damages for legal malpractice, a plaintiff must demonstrate that the attorney ‘failed to exercise the ordinary reasonable skill and knowledge commonly possessed by a member of the legal profession’ and that the attorney’s breach of this duty proximately caused plaintiff to sustain actual and ascertainable damages. To establish causation, a plaintiff must show that he or she would have prevailed in the underlying action or would not have incurred any damages, but for the lawyer’s negligence” (Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442, 835 NYS2d 534 [2007] quoting McCoy v Feinman. 99 NY2d 295,301-302,755 NYS2d 693 [2002]). The plaintiff must show that the attorney’s breach of 3 professional duty caused her actual damages in order to recover for legal malpractice; conclusory allegations of damages or injuries based upon speculation will not suffice (Holschauer v Fisher, 5 AD3d 553, 772 NYS2d 836 [2d Dept 20041). To succeed on a summary judgment motion dismissing a complaint in an action to recover damages for legal malpractice, a defendant must demonstrate that the plaintiff is unable to prove at least one of the essential elements of its legal malpractice cause of action (Gershkovich v Miller, Rosado & Algios, LLP, __- AD3d -, 945 NYS2d 567 [2d Dept 20121; Boglia v Greenberg 63 AD3d 973, 882 NYS2d 2 I5 [2d Dept 2009). Here, plaintiff seeks damages for legal malpractice as against defendant Courten. As plaintiff has failed to demonstrate that she retained defendant Courten to represent her in connection with any matter, she has failed to show that defendant Courten owed her any duty, let alone that she sustained damages as a result of a breach of that duty. Absent a duty to plaintiff, no negligence (malpractice) can be found against defendant attorney Courten. "

An action to recover damages for malpractice, other than medical, dental or podiartric malpractice, regardless of whether the underlying theory is based in contract or in tort" is subject to a 3 year statute.  More importantly, unless fraud is truly independent of, and not incidental to the professional representation, it too will be subject to a 3 year statute.

LSF6 Mercury Reo Investments LLC v Platinum  Appraisals  2013 NY Slip Op 31464(U)  July 3, 2013 Sup Ct, NY County  Docket Number: 153196/2012  Judge: Ellen M. Coin restates this twin set of rules for real estate appraisers.  "In this action, plaintiff LSF6 Mercury Reo Investments LLC
seeks to recover damages it allegedly suffered as a result of a faulty real estate appraisal conducted by defendants Platinum Appraisals and Joseph Barrara. Defendants move pursuant to
CPLR §3211 (a) (1), (5) and (7) to dismiss the complaint. "

"CPLR §214(6) states that a three-year statute of limitations applies to "an action to recover damages for malpractice, other than medical, dental or podiatric malpractice, regardless of
whether the underlying theory is based in contract or tort."  CPLR §214(6) does not define "malpractice."  A cause of action for fraud is generally governed by a six-year statute, running from the date of the fraud, or a two-year statute, running from the date the fraud was discovered, or could
have been discovered by reasonable means. (CPLR §213 (8); House of Spices (India), Inc. v SMJ Servs., Inc., 103 AD3d 848, 849 "

"The applicable statute of limitations is governed by the "gravamen" of the claim. (See Scot t v Fields, 85 AD3d 756, 758 [2 nd Dept 2011]). Hence, where a claim for fraud or misrepresentation is "merely incidental" to a claim for negligence or malpractice, the three-year statue for malpractice
will govern. (Nickel v Goldsmith & Tortora, Attorneys at Law, P.C., 57 AD3d 496, 496-97 [2 nd Dept 2008]; see also Frumento v On Rite Co., Inc., 66 AD3d 828, 830 [2 nd Dept 2009] [the "reality" or
"essence" of a claim, "not its form" determines whether it will be treated as a cause of action for fraud or for negligence] [internal quotation marks and citation omitted]). Similarly, a breach of contract which is really a restatement of a professional malpractice claim will be governed by the three-year statute applicable to such claims. (Matter of R.M. Kliment & Francis Halsband, Architects (McKinsey & Co., Inc.), 3 NY3d 538, 541-42 [2004])."

Plaintiff hires attorney 1 and after a while begins to court Attorney 2.  Meanwhile, back at home, no one is looking after affairs, and the litigations begin to unravel. Who is at fault?

Devonshire Surgical Facility, LLC v Law Offs. of Leo Tekiel,   2013 NY Slip Op 31441(U)
July 3, 2013  Supreme Court, New York County  Docket Number: 105558/07
Judge: Cynthia S. Kern describes the duties and obligations of the attorneys in this third-party dismissal motion. 

"Third- party defendant Kenneth L. Kutner, Esq. (“Kutner”) has brought the present motion for summary judgment dismissing the third-party complaint as against him. For the reasons stated below, the motion is granted and the third-party complaint is dismissed as against Kutner.

The relevant facts are as follows. Kutner is an attorney. He alleges that in 2004, he was advised by a friend of his, Mr. Einiger, that a client of Mr. Einiger, Dr. Allan Chamberlain, may have a cause of action against various insurance companies for improperly denying insurance payments for medical services rendered. Kutner agreed with Mr. Einiger to cooperatively investigate the claims regarding misconduct by the insurance companies with regard to denying payments to Dr. Chamberlin’s medical practices Devonshire Surgical Facility, LLC (“Devonshire) and Carnegie Hall Orthopedic Services, P.C. (“Carnegie”) and to assist in commencing a case in Supreme Court against several of the offending insurance companies. This action was commenced in September 2004. In connection with the Supreme Court action, Hoffinan, Einiger and Polland , PLLC was directly retained by Dr. Chamberlin.Kutner was never directly retained by Dr. Chamberlin in the Supreme Court action but was retained by Mr. Einiger’s firm to assist in the Supreme Court action.

The Travelers Action sought payment for medical services rendered by Dr. Chamberlin’s medical practices to fourteen of Travelors’ insureds under no fault insurance coverage. The Tekiel defendants had assumed the representation in the Travelors Action from prior counsel in the matter, Paul Solda, Esq. After the plaintiffs in the Travelors Action failed to respond to discovery requests which Travelors had served on them, Travelors filed a motion to dismiss the Travelors Action pursuant to CPLR 3 126 for the continued failure to provide the requested discovery in March 2004. After Travelors filed the motion to dismiss, Kutner sent a letter to Mr. Tekiel dated March 25,2004 in which he requested, inter alia, that Mr. Tekiel furnish him with all captions and index numbers of actions already commenced so that Kutner could prepare substitution of attorney forms. In response to this letter, Tekiel sent Kutner correspondence dated March 26,2004 which included a list of nineteen commenced actions with regard to the Tekiel Defendants’ representation of Chamberlin’s medical practices. The list included the Travelors Action and noted that a motion to dismiss was returnable on April 5,2004 and that discovery had not been provided. On or about May 10,2004, Kutner again sent a letter to Tekiel requesting that Tekiel adjourn Travelors’ motion to dismiss so as to permit Kutner and his co-counsel to “finalize the anticipated substitution of attorneys in the case” being handled for Dr. Chamberlin. On May 1 1,2004, on the return date of the motion to dismiss, the Tekiel Defendants, through per diem counsel, stipulated in the Travelors action to a self executing conditional order of preclusion if the requested discovery was not provided within sixty days.

Based on this court’s finding that Kutner never owed any duty to represent plaintiffs in the Travelors Action, there can be no valid third party claim for contribution. In order to determine whether a third party action for contribution exists, “the critical issue is whether the third- party defendant owed a duty to the plaintiff which was breached and which contributed to or aggravated plaintiffs’s damages.” Rosner v. Paley, 65 N.Y.2d 736,738 (1985). Since this court has already determined that Kutner did not owe any duty plaintiffs in the Travelors Action since he never represented them in that action, he cannot be found to have contributed to plaintiffs’ injuries in that action and cannot be found liable for contribution. ’ The cause of action for contribution is also insufficient as a matter of law because the damages sought in the underlying action are purely monetary. Under New York’s contribution statute, “two or more persons who are subject to liability for damages for the same personal injury, injury to property or wrongful death, may claim contribution among them whether or not an action has been brought or a judgment has been rendered against the person from whom contribution is sought.” CPLR 6 140 1. Board of Educ. of Hudson City School Dist. v. Sargent, Webster, Crenshaw & Folley, 71 N.Y.2d 21,26 (1987). The law is clear that where “the
underlying claim seeks purely economic damages, a claim for common-law contribution is not
available.” Children’s Corner Learning Center v. A Miranda Contracting Corp., 64 A.D.3d 3 18,323 (1” Dept 2009). “[Tlhe determining factor as to the availability of contribution is not the theory behind the underlying claim but the measure of damages sought.” Rockefeller University v. Tishman Construction Corp., 240 A.D.2d 341 (1” Dept 1997). If the damages sought are to be placed in as good a position as one would have been but for the acts being sued upon, then the claim is for economic damages. Children’s Learning Center, 64 A.D.3d at 324. "