Chiantella v Kroll ;2011 NY Slip Op 32140(U) ;July 19, 2011 ;Sup Ct, Nassau County; Docket Number: 019337/07; Judge: Jeffrey S. Brown is a case that seems strange on all fronts.  Son is the beneficiary of mother’s trust, yet when she dies, he seems held hostage by the attorneys of the estate.  Since the estate has a single beneficiary, the administrations seems top-heavy.  This situation inevitably leads to accusations of financial wrongdoing.  Tax refund checks go awry and accountings are demanded.  Is this legal malpractice, and might the beneficiaries attorney be liable for legal malpractice too?

"In this legal malpractice action, the plaintiff seeks to recover damages allegedly caused by the defendant attorneys ‘ negligence and mishandling in representing him with respect to his mother s Trust and Estate. The plaintiffs mother Lucy Chiantella created the Lucy Chiantella Revocable Trust on November 6, 2002. Bernard Vishnick and Lucy Chiantella were Co-Trustees and John Gavros
was named Successor Co-Trustee in the event that Vishnick or Chiantella ceased to serve.
Pursuant to the Trust, the plaintiff was to receive the monthly payments of principal and interest
on mortgages and notes held by the Trust immediately upon the Trust’s receipt thereof and the
Trust’ s income was to be distributed to him at least anually. The Trust provided that if the
plaintiff survived his mother, one-third of the Trust’ s assets would be paid to him at her death
one-half of the remaining Trust assets would be paid to him on the third anniversary of her death
and the remainder of the Trust assets would be paid to him on the seventh anniversary of her
death. In the event that the plaintiff died without issue before all of the assets were distributed
the Trust balance was to be paid to various religious entities. The plaintiffs mother also made a
will which devised all of her residuary estate to the Trust. The plaintiff was the sole named
legatee. The plaintiff and Vishnick were Co-Executors of the Estate.
 

The plaintiffs mother died on April 14 , 2003.
 

Shortly thereafter, conflict regarding Vishnick’ s handling of the Estate developed.  Via his first cause of action, the plaintiff has alleged malpractice and breach of contract based upon the defendants ‘ failure to procure all of the benefits to which he was allegedly entitled under the Trust and Estate. Plaintiff challenges the defendants ‘ failure to enforce the Trust and procure his mortgage income distributions upon their receipt, his annual distributions of Trust income and entire first and second Trust distributions. He also challenges the defendants ‘ failure to interpose objections to Vishnick’ s Estate accounting and to procure an accounting of the Trust and to have him removed as Co-Trustee and Co-Executor. He also challenges the defendants ‘ failure to properly defend him in the holdover proceeding and counseling him to enter into the June 22, 2006 Settlement whereby he agreed to purchase property to which he was already entitled pursuant to the Trust which caused him the loss of an immediate distribution to which he was also entitled pursuant to the Trust, and counseling him to renounce a portion of mortgage income to which he was also entitled pursuant to the Trust. This plaintiff avers, was all done to generate counsel fees. The plaintiff now seeks to amend the first cause of action to include the defendants ‘ failure to procure his final distribution under the Trust at the seventh anniversary of his mother s death and to obtain a satisfaction of the mortgage which was placed on the Little Neck property pursuant to a June 22, 2004 Settlement.

As and for his second cause of action, the plaintiff seeks to recover damages for inter alia the defendants ‘ negligence in failing to properly advise him regarding his verses the Trust  and Estate s obligations for taxes; to properly defend him against Vishnick’ s allegations that he stole money from the Trust, including the temporary restraining order; and, for counseling him to enter into September 11 , 2006 Settlement and in part falsely representing his consent thereto  in his release of Vishnick. The plaintiff seeks to amend his second cause of action to include andamages the defendants ‘ failure to challenge Vishnick’ s failure to make the third distribution at
the seventh anniversary of his mother s death as required by the Trust; the defendants
withdrawal of the objections to Vishnick’ s Estate accounting with prejudice; and their failure to
seek an accounting by Vishnick of the Trust.

The proposed Second Amended Complaint does no more than identifY with greater specificity the damages allegedly incurred by the plaintiff as a result of the defendants ‘ alleged negligence , some of which have only been realized since the commencement of this action. That those claims emanate from an agreement between plaintiff and Vishnick and that the plaintiff is precluded from recovering from Vishnick hardly serves to insulate the defendant attorneys pursuant to the doctrine of res judicata. Furthermore, whether the plaintiffs inability to recover ofVishnick is owing in whole or part to his attorneys mishandling of the special proceeding does not lay to rest the question of the defendants negligence and require that leave to amend be denied.

It’s not as simple as one might think.  in Young v Quatela ;2011 NY Slip Op 32143(U); July 18, 2011;Sup Ct, Nassau County;Docket Number: 601658/09;Judge: Thomas Feinman we see how family and representation might be stretched or constricted based upon circumstances.

"The plaintiff moves by way of Order to Show Cause for an order (1) disqualifying the law firm of’ L’Abbate , Balkan, Colavita & Contini, LLP, from further representation in this case because of unauthorized ex pare contact with the plaintiff and plaintiff s father, (2) sanctioning defendant Joseph Quatela and the law firm of’ L’Abbate , Balkan, Colavita & Contini, LLP, awarding plaintiff
attorney s fees, (3) striking the Answer of defendant, Joseph Quatela based upon his misconduct, (4) suppressing any evidence improperly obtained by the defendants, (5) quashing a subpoena calling for the testimony of Raymond M. Young, (hereinafter referred to as "Sr. ), father of Raymond
Young, (hereinafter referred to as "plaintiff’ and " Jr. ). While the movant’s motion , by way or Order to Show Cause, seeks to disqualify the law firm of’ L’Abbate , Balkan, Colavita & Contini, LLP, (hereinafter referred to as the "law firm ), " because of ex pare contact with plaintiff and plaintiff s father , (emphasis added), counsel’ s affirmation in support of the motion only refers to purported ex pare communications with Sr. only, not plaintiff/Jr. , a par in this action.

Plaintiff s counsel later avers that he was retained to represent Sr. in a federal action brought by plaintiffs wife, Deborah Young, against Sr. and defendant, Joseph Quatela, whereby Deborah Young apparently claimed that the defendants wrongfully gained access to her home, while the
matrimonial action between Deborah Young and plaintiff/Jr. was pending. Although the plaintiff has not provided this Court with the name or action number of such federal action, the defendants have annexed a copy of the summons of the civil action entitled Deborah Young, Individually and as the parent and natural guardian of Melissa Young, Emmalee Young and Cecelia Young v. Suffolk County, Suffolk County Department of Social Services, Suffolk County Police Department, Michael Delgado, Joseph Quatela, Edmond Coppa, Individually and Edmond Coppa Photography, Raymond L. Young, Raymond M Young, News Newsday, New York Post, New York Daily News, CBS TV. COM bearing Index Number CV -3325/09, pending in the United States District Court for the Eastern District of New York, to the defendants ‘ crossmotion. The plaintiff, Deborah Young, and the infant plaintiffs, allege that the defendants essentially violated their civil rights. The plaintiffs allege inter alia that on or about February 21 2007, Jr. and others , brought garbage, debris, urine, feces and other matters into the premises and strewn them about, creating unsanitary,  uninhabitable and unsafe conditions while plaintiff left her residence for vacation. The complaint in the federal action also alleges that after Jr. trashed the premises, he summoned workers, friends, his father, the police, his attorney, (defendant herein, Joseph Quatela), the Department of Social Services, the media and others, defaming, embarrassing, ridiculing and humiliating the plaintiff, Deborah Young, and their three children. Thereafter, the complaint provides that the plaintiff children were placed into the custody of the Department of Social Services. 

The plaintiff, in the instant action, provides that the February 21 , 2007 incident drew a
significant amount of media coverage, and therefore, plaintiffs ex-wife brought the federal action.
Plaintiffs counsel submits that he learned that defendant, Joseph Quatela, and defendant’ s counsel
had an ex pare communication with Sr. with respect to a proposed affidavit prepared for Sr.
 signature, as a result of receiving of notice for a deposition, and submits such communication
violates 22 NYCRR 1200 and DR 7- 104(A)(I), and warrants disqualification.

Such is one of the allegations in Chiantella v Kroll, 2011 NY Slip Op 32140(U); July 19, 2011; Sup Ct, Nassau County, which was recently decided by Justice Brown.  The fact pattern suggests that what is discussed is simply the tip of the otherwise submerged iceburg.  How this situation arise is not fathomable.  Here are the facts:

"In this legal malpractice action, the plaintiff seeks to recover damages allegedly caused by the defendant attorneys ‘ negligence and mishandling in representing him with respect to his mother s Trust and Estate. The plaintiffs mother Lucy Chiantella created the Lucy Chiantella Revocable Trust on November 6, 2002. Bernard Vishnick and Lucy Chiantella were Co-Trustees and John Gavros
was named Successor Co-Trustee in the event that Vishnick or Chiantella ceased to serve.
Pursuant to the Trust, the plaintiff was to receive the monthly payments of principal and interest
on mortgages and notes held by the Trust immediately upon the Trust’s receipt thereof and the
Trust’ s income was to be distributed to him at least anually. The Trust provided that if the
plaintiff survived his mother, one-third of the Trust’ s assets would be paid to him at her death
one-half of the remaining Trust assets would be paid to him on the third anniversary of her death and the remainder of the Trust assets would be paid to him on the seventh anniversary of her
death. In the event that the plaintiff died without issue before all of the assets were distributed
the Trust balance was to be paid to various religious entities. The plaintiffs mother also made a
will which devised all of her residuary estate to the Trust. The plaintiff was the sole named
legatee. The plaintiff and Vishnick were Co-Executors of the Estate.

The plaintiffs mother died on April 14 , 2003.  Shortly thereafter, conflict regarding Vishnick’ s handling of the Estate developed. When faced with Vishnick’ s attempt to evict him from his lifelong home at his mother s Little Neck property, which had devolved to the Trust at her death, the plaintiff sought removal of Vishnick as Trustee and Co-Executor via prior counsel. When that attorney was discharged, the plaintiff retained the defendants via a retainer agreement dated May 14 2004. The retainer agreement provided that the defendants were retained to represent the plaintiff "in connection with the Estate of his mother and matters related thereto. " The plaintiff alleges that via the retainer agreement, he retained the defendants to represent him both as a beneficiary of the Trust and Estate and in his capacity of Co-Executor of the Estate. Ultimately, the plaintiff, represented by the defendant Martin Kroll of Kroll, Moss & Kroll, executed a Stipulation of Settlement on June , 2004 which provided that he was purchasing the Little Neck property which was owned by the Trust for $475 000. , towards which he was receiving a credit of$101 300. 36 as part of his initial Trust distribution; that the balance was to be paid to the Trust via a purchase money mortgage with six percent interest which balance including principal and interest was due on the seventh anniversary of his mother s death; and, that the plaintiff would procure life insurance
benefits of $375 000. 00 payable to the Trust. Via that Settlement, as part of his initial Trust
distribution, the plaintiff also acquired his mother s Rocky Point property which was valued at
$117 500. 00 and had also devolved to the Trust at her death

So, we are left to wonder why plaintiff bought a house that was his already, and why he took out a mortgage on money that was his already?

Lessons:  A party seeking leave to amend his/her complaint bears the burden of demonstrating that the proposed amendments are not palpably insuffcient or patently devoid of merit. See Zeleznik v MST Const.. Inc , 50 AD3d 1024 (2 Dept. 2008). "Although leave to amend should be freely given in the absence of prejudice or surprise to the opposing part (see CPLR 3025(b)), the
motion should be denied where the proposed amendment is palpably insufficient or patently
devoid of merit." Ferrandino & Son. Inc. v Wheaton Builder. Inc.. LLC, 82 AD3d 1035 (2
Dept. 2011), citing Scofield v DeGroodt, 54 AD3d 1017, 1018 (2 Dept. 2008); Lucido v
Mancuso, 49 AD3d 220, 227 (2 Dept. 2008). Legal malpractice may be predicated on an
il-advised settlement agreement. Steven L. Levitt & Associates. P. C. v Balkin, 54 AD3d 403
Dept. 2008); Fusco v Fauci, 299 AD2d 263 (1 sl Dept. 2002). 

In this fascinating case, everyone lost, yet no one except Marc Dreier seems to be in the wrong.  Plaintiffs went through a bankruptcy with their business Cosmetics Plus.  They suffered the loss of two stores at WTC 1, and obtained insurance payments from AIG.  Defendants represented them in the bankruptcy, and then took their law practice to Dreier LLP.  The settlement monies were deposited into Dreier escrow accounts, and, yes, were deposited just before the arrest of Marc Dreier.

In Cosmetics Plus Group, Ltd. v Traub ;2011 NY Slip Op 32149(U); August 4, 2011
Supreme Court, New York County ;Docket Number: 113240/09; Judge: Judith J. Gische we see plaintiff”s motion for summary judgment denied and defendant’s granted.

"While the court is sympathetic to the fact that plaintiffs, through no fault of their own, suffered a substantial financial loss, that loss is not answerable by the defendans in this action. For the reasons set forth below, the plaintiffs’ motion for summary judgment is denied and the defendants’ cross-motion for summary judgment is granted. Breach of Partnership Laws Preliminarily, the court recognizes that plaintiffs do not make any arguments in opposition to defendants’ cross-motion to dismiss the 4th COA. Defendants show that there is no ascertainable violation of the partnership law by either Taub or Fox. Summary judgment dismissing the 4th COA against them is, therefore, granted. Legal Malpractice is professional negligence. Brooks v. Lewin, 21 A.D.3d 731 (1st Dept 2005). An action for legal malpractice requires proof of negligence consisting of an
attorney’s failure to exercise that degree of care, skill and diligence commonly possessed and exercised by a member of the legal community.  Darby & Darby PC v. VSI Intern, Inc., 95 NY2d 308 (2000)"

"The gravamen of plaintiffs’ motion is based upon their argument that defendants “flagrantly violated” Judge Beatty’s October 30, 2008 order by failing to distribute the escrowed funds to them within 15 days of that order. They argue that defendants were further negligent when, after receiving the proceeds from Dreier LLP which defendants deposited into the TBF escorw fund, they ultimately surrendered the funds over to Gowan, the trustee in bankruptcy, rather than paying plaintiffs. They also object to the fact that defendants paid themselves from the monies on hand.
Defendants claim that they are entitled to summary judgment dismissing all the theories of malpractice alleged in the complaint. Those theories include the arguments advanced by plaintiffs on this motion, as well as claims that defendants were negligent in failing to obtain a timely dismissal of the plaintiffs’ bankruptcy case, and in depositing the settlement proceeds into the Dreier LLP escrow account because the knew or should have known about Marc Dreier’s illegal conversions.
 

In their motion for summary judgment, plaintiffs do not address or provide any support for their claim that defendants either knew or should of known about Marc Dreier’s conversion of funds in the Dreier LLP escrow account. In the cross-motion defendants assert that they had no knowledge of Marc Dreier’s activities and had no reason to believe that the monies in the Dreier LLP escrow account were not being safely guarded. This claim is not addressed by the plaintiffs in their reply. Consequently, this claim is dismissed.

In their motion for summary judgment, plaintiffs’ do not address their pleaded claim that defendants should have proceeded more quickly to obtain the dismissal of the bankruptcy case following the settlement of the matter with AIG. Defendants have provided detail about the actions undertaken by Fox, after the AIG matter was settled, to bring this plaintiff‘s bankruptcy matter to conclusion. Fox’s services included proceeding with a structured dismissal, which allowed for the dismissal to be submitted to the court without any opposition by any interested party. While these matters took several months, plaintiff has not addressed why the time taken deviated from the time that could reasonably have been expected for such proceedings. Defendants, on the other hand,
have provided the court with an expert report from the Hon. Francis G. Conrad, a retired bankruptcy judge, that the time taken to negotiate and present the structured dismissal to the court, did not deviate from the standard of care and skill of an average New York bankruptcy attorney. Consequently, this claim is dismissed ,

In Bernard v Proskauer Rose, LLP ; 2011 NY Slip Op 06184 ; Decided on August 4, 2011 ; Appellate Division, First Department  we see a situation in which plaintiff sues his attorneys, who defend by arguing that the plaintiff brought it all upon himself.
 

"In this action for legal malpractice, breach of fiduciary duty and breach of contract, plaintiff alleges that defendants Proskauer Rose, LLP (Proskauer) and Michael Album (Album), a partner at Proskauer, failed to adequately advise him regarding his departure from Oaktree Capital Management, L.P. (OCM), a real estate investment hedge fund. Plaintiff alleges that as a result of defendants’ negligence he was sued in arbitration by OCM and sustained damages in the amount of $51.5 million, including forfeited incentive fees, compensatory damages paid to OCM, and legal fees. "

"In October 2005, plaintiff made an offer in OCM’s name to purchase 60 Main Street, a real estate investment opportunity he first learned of in November 2004. The offer was made without OCM’s knowledge or permission, and plaintiff furnished OCM’s financial information in support. In November 2005, plaintiff entered into a purchase agreement for the 60 Main Street property in the name of one of his own entities, Westport Property Management, LLC.

On or about November 1, 2005, plaintiff decided to leave OCM. Album, a partner in Proskauer’s Employee Benefits and Executive Compensation Group retained by plaintiff in October 2004, began discussions with OCM’s general counsel for plaintiff’s departure. On November 18, while discussions were ongoing, plaintiff resigned in writing as an employee and principal "effective immediately" and gave 120 days notice of his resignation as a member of OCM. On December 1, 2005, plaintiff issued a press release announcing the formation of Westport.

On December 12, 2005, the Executive Committee of OCM voted to expel plaintiff as a [*2]member due to his "abrupt departure and his announcement of the formation of a competing entity," and refused to pay him any incentive fees. Plaintiff initiated arbitration against OCM for recovery of fees he was purportedly owed and other damages. During arbitration, OCM learned of plaintiff’s misconduct with regard to ROF IV and 60 Main Street and on November 7, 2006, expelled plaintiff as a member on these independent grounds. OCM counterclaimed for damages on the grounds that plaintiff breached his contractual and fiduciary duties, and misappropriated confidential financial information. "

"Here, the arbitrator found that plaintiff’s dilatory conduct with regard to ROF IV, self-dealing with regard to the 60 Main Street opportunity, and misappropriation of OCM’s financial information constituted breaches of his fiduciary and contractual duties. The arbitrator specifically found that "[b]eginning in early 2005" plaintiff was "stalling the launch of [ROF] IV so that he could deflect possible investment sources to the new entity he was forming." The arbitrator found that during the summer of 2005, plaintiff formed Westport Capital Partners, LLC, and began collecting OCM information to take with him to his new venture. He requested a list of all of his contacts at OCM and copies of quarterly investment letters, and obtained detailed information about OCM investments made by specific investors.

Relying on the arbitrator’s factual findings, the motion court determined that plaintiff’s course of misconduct began well before any purported advice received by plaintiff from defendants in August 2005. The court observed that there was no indication that "defendants knew of, or advised plaintiff to purchase 60 Main Street" for Westport, or to "collect[] OCM’s financial information for his personal use." The motion court concluded that these activities, which the arbitrator found to be breaches of fiduciary duty and/or contractual duty, would have resulted in his justifiable expulsion regardless of his resignation.

The factual findings and issues resolved by the arbitrator establish that it was plaintiff’s own misconduct prior to and apart from any advice from defendants that led to his termination for cause. The plaintiff had a full and fair opportunity to litigate these facts and issues at arbitration, and the application of collateral estoppel precludes him from relitigating them in this malpractice action (see e.g. GUS Consulting Gmb, 74 AD3d 678-679; Fajemirokun v Dresdner Kleinwort Wasserstein Ltd., 27 AD3d 320 [2006], lv denied 7 NY3d 705 [2006]).

Because the arbitral findings establish as a matter of law that defendants were not the cause of plaintiff’s losses, the motion court properly dismissed plaintiff’s complaint (see Tydings v Greenfield, Stein & Senior, LLP, 43 AD3d 680, 682 [2007], affd 11 NY3d 195 [2008]). Plaintiff’s claim that had he not resigned, he may have been able to hide his fraudulent activities, [*4]continue to collect fees, and reach an agreement with OCM is purely speculative and does not raise a triable issue of fact (see AmBase Corp. v Davis Polk & Wardwell, 8 NY3d 428, 434-436 [2007]; GUS Consulting Gmb, 74 AD3d at 679; Phillips-Smith Speciality Retail Group II v Parker Chapin Flattau & Klimpl, 265 AD2d 208, 210 [1999], lv denied 94 NY2d 759 [2000]). "

Equitable estoppel is an argument which posits that (for example) the statute of limitations should  not bar an action, because defendant led plaintiff on, and kept plaintiff from timely filing a case.  In WASHINGTON MUTUAL BANK, Plaintiff, -against- LESTER YOUNG, RAYMOND MAR, MARILYN HARRIS, AKA MARILYN SELLER, US BANK NATIONAL ASSOCIATION, et al,  the argument succeeds for plaintiff.

"The statute of Limitations applicable to actions alleging conversion is three years (CPLR 214 [3]; Herman v Depinies, 273 AD2d 146, 710 N.Y.S.2d 899 [1st Dept 2000]), which begins to run at the time of the alleged theft even if the plaintiff is then unaware of it (Herman v Depinies, 273 AD2d 146, 710 N.Y.S.2d 899, supra.). Since the Check was deposited into the Beneficial account on March 11, 2005, Harris had until March 11, 2008 to bring her conversion claim. Thus, her conversion claim, commenced on July 7, 2008, more than three years after the alleged taking of the property occurred, is untimely (Close-Barzin v. Christie’s, Inc.., 51 A.D.3d 444, 857 N.Y.S.2d 545 [1st Dept 2008]).

However, as argued by Harris, equitable estoppel may be invoked to defeat a statute of limitations defense where the "’plaintiff was induced by fraud, misrepresentations or deception to refrain from filing a timely action’" (Kaufman v Cohen, 307 AD2d 113, 122, 760 N.Y.S.2d 157 [1st Dept 2003] quoting [*8] Simcuski v Saeli, 44 NY2d 442, 448-449, 377 N.E.2d 713, 406 N.Y.S.2d 259 [1978]). The doctrine of equitable estoppel "requires proof that the defendant made [**7] an actual misrepresentation or, if a fiduciary, concealed facts which he was required to disclose, that the plaintiff relied on the misrepresentation and that the reliance caused plaintiff to delay bringing timely action" (Kaufman v Cohen, 307 AD2d at 122; see also Powers Mercantile Corp. v Feinberg, 109 AD2d 117, 490 N.Y.S.2d 190 [1st Dept 1985], affd 67 NY2d 981, 494 N.E.2d 106, 502 N.Y.S.2d 1001 [1986]). Here, Harris alleges that Dalley willfully concealed his involvement as a partner of Beneficial and a signatory of the checks that dispersed the underlying funds from Beneficial’s account, which prevented the discovery of such information in a timely manner. The record relied on by Dalley to oppose Harris’s equitable estoppel argument raises issues of fact, inter alia, as to whether Harris was aware of Dalley’s relationship with Beneficial, prior to the expiration of the statute of limitations, and therefore whether the doctrine of equitable estoppel should be applied in the within circumstances. In particular, Dalley alleges that three (3) months after the closing date, Harris received a Beneficial check dated May 5, 2005, signed by Dalley, raising a factual issue as to whether Harris was aware of Dalley’s connection to Beneficial, [**8] prior to the expiration of the statute of limitations. Thus, that branch of Dalley’s motion to dismiss the fraud and conversions claims on the grounds of the statute of limitations is denied."

When may a criminal defendant sue her criminal defense attorney?  Almost never, and when it is permissible, usually in breach of contract.  Here, in CAROL PEIRCE, -v- JAMES NEUMAN,  Index Number 116678/2008; SUPREME COURT OF NEW YORK, NEW YORK COUNTY;2011 NY Slip Op 31812U; 2011 N.Y. Misc. LEXIS 3288 we see a case which loses on the facts, but not on procedural aspects of legal malpractice.  This claim is for a return of fees paid to an appellate practitioner. 

Typically the claim is that the attorney took money and did not produce an appeal, but this case is different.  "Plaintiff retained defendant pursuant to a flat fee retainer agreement entered into on April 3, 2008, to represent her in connection with an appeal of her recent conviction on charges of federal conspiracy to commit fraud, mail fraud, and theft from a program receiving federal funds (Mot. seq. 001, Neuman affid. [**2] at ¶ 5). The agreement took the form of a letter from defendant to plaintiff, dated April 3, 2008, and signed by both parties. Under the letter agreement, defendant would charge a total of $50,000.00 in legal fees for his representation, unless plaintiff agreed that it was ultimately not in her best interest to submit a post-verdict motion pursuant to Rule 29 or Rule 33, in which case the fee would be reduced to $40,000.00 (Mot. seq. 001, ex. B, letter agreement at 1).

The agreement provided for a series of payments and a schedule for the same. An initial payment of $7,500.00 was due immediately upon execution of the agreement, and, upon payment, defendant was to then undertake to review the record of the proceedings in order to evaluate whether a motion under Rule 29 or Rule 33 of the Federal Rules of Criminal Procedure should be submitted. If plaintiff opted to go forward with the motion, the agreement provided she would owe an additional $27,500.00 to defendant on or before April 14, 2008 (id. at 1-2). If plaintiff opted to forego the motion, the agreement provided, "then that amount of $27,500.00 may be submitted at a later date" (id. at 2). The letter agreement further stated that [**3] defendant would not file a notice of appearance until he had received a total sum of $35,000.00 (id.). The balance of the fee was to be due before the sentencing date. The amount of the balance depended on whether a a Rule 29 or Rule 33 motion was prepared; if it was the balance due would be $15,000.00 and if it was not, the balance due would be $5,000.00 (id.). The final [*4] paragraph of the letter agreement provides "[t]hough no guarantees have or can be made concerning the outcome of your case, I will represent you to the best of our ability" (id.)."
 

"The complaint alleges breach of contract by defendant because of his alleged failure to perform his obligations under the parties’ letter agreement. "A breach of contract claim against an attorney based on a retainer agreement may be sustained only where the attorney makes an express promise in the agreement to obtain a specific result and fails to do so" (Pacesetter Communications Corp. v Solin & Breindel, P.C., 150 AD2d 232, 236, 541 N.Y.S.2d 404 [1st Dept 1989]). Here, the letter agreement includes a provision stating "[t]hough no guarantees have or can be made concerning the outcome of your case, I will represent you to [**8] the best of our ability" (Mot. seq. 001, ex. A, letter agreement). There are no actionable express promises made in the retainer agreement defendant is said to have breached. Furthermore, plaintiff cannot rely upon alleged [*7] oral promises made to overcome the express language of the contract sued upon (see Pacesetter, 150 AD2d at 236).

To the extent plaintiff asserts causes of action for negligent representation and negligence, plaintiff is essentially alleging attorney malpractice (see Schwartz v Olshan Grundman, 302 AD2d 193, 199-200, 753 N.Y.S.2d 482 [1st Dept 2003]). To prevail on a cause of action for legal malpractice, plaintiff must satisfy three elements: (1) the negligence of the attorney; (2) that the negligence was the proximate cause of the loss sustained; and (3) actual damages (Leder v Spiegel, 31 AD3d 266, 267-268, 819 N.Y.S.2d 26 [1st Dept 2006]). In order to establish proximate cause, "plaintiff must demonstrate that ‘but for’ the attorney’s negligence, plaintiff would either have prevailed in the matter at issue, or would not have sustained any ‘ascertainable damages’" (id.; citing Brooks v Lewin, 21 AD3d 731, 734, 800 N.Y.S.2d 695 [1st Dept 2005]). The failure to demonstrate proximate cause requires dismissal of a legal [**9] malpractice claim regardless of whether the attorney was negligent (Schwartz, 302 AD2d at 198).

Here, plaintiff does not offer sufficient proof establishing proximate cause. Plaintiff alleges that defendant’s conduct caused her to lose the opportunity to file a post-conviction motion under Federal Rules of Criminal Procedure 29 or 32 (Mot. seq. 002, plaintiff’s affid. at 19). However, plaintiff does not even attempt to provide prima facie proof that she would have succeeded if such a motion was filed. For this reason alone, plaintiff fails to establish the proximate cause element necessary to sustain a claim of malpractice. To the extent plaintiff seeks recovery under a theory that defendant negligently misrepresented that he would bring a post-conviction motion, such claim is extinguished by reference to the unambiguous terms of the retainer letter agreement, which clearly contemplates that a Rule 29 or Rule 32 may or may not [*8] be filed depending on defendant’s evaluation of the record and applicable law (Mot. seq. 001, ex. A, letter agreement). Plaintiff’s claim sounding in unjust enrichment is duplicative of her claim that she is entitled to a refund of the legal fees she paid to [**10] defendant."
 

Intentional infliction of emotional distess is rarely alleged alongside a legal malpractice claim, but here in WASHINGTON MUTUAL BANK, Plaintiff, -against- LESTER YOUNG, RAYMOND MAR, MARILYN HARRIS, AKA MARILYN SELLER, US BANK NATIONAL ASSOCIATION,, et al,  it is, to no avail.

"In its complaint, WaMu alleges that, on February 10, 2005, Harris and Mar, owners of the Subject Premises, conveyed title thereof to Young; that, in conjunction with this transaction, Young borrowed $800,000 from WaMu, and executed and delivered a mortgage to WaMu, which was recorded in the City Register of the City of New York on May 12, 2005 (the WaMu Mortgage). WaMu claims that the deed was misplaced or lost and not recorded, and that Mar, Harris and/or Young have failed and continue to refuse to re-execute a deed. WaMu therefore seeks, pursuant to Article 15 of the Real Property Actions and Proceedings Law, a judgment declaring defendant Young as the rightful owner of the Subject Premises.

In the third-party action, Harris alleges a fraudulent lending scheme involving third-party defendants Figaro Dezil (Dezil), a loan consultant from Washington Mutual Bank, Cal Stuart (Stuart), the title closer from Union National Abstract LLC (Union), and John A. Dalley, Esq. [**3] (Dalley), counsel obtained by Stuart and/or Dezil for Harris and Young. Harris asserts that Dezil and Dalley induced her to engage in a sale of her property located at 487 Manhattan Avenue, New York, New York to Young, which would include a long-term lease and an option to repurchase, rather than a refinancing. She also alleges, inter alia, that, at the loan closing, Dalley did not have Young sign an option agreement, that [*5] Dalley received a check for $9,500, from which he paid Dezil an illegal mortgage placement fee of 1% of the mortgage proceeds, and that the mortgage payoff check (the Check) made payable to Americas Servicing Company (ASC), was given to Stuart. Harris further asserts that the Check was not delivered to ASC, but was instead fraudulently endorsed by Stuart, and deposited into an account maintained at North Fork by Beneficial Settlement Services (Beneficial), which resulted in the inappropriate retention of the loan proceeds by Dezil, Dalley and Stuart. She also complains that the acceptance and payment of the Check by North Fork Bank (North Fork) and Citibank resulted in the theft of its underlying funds."
 

"However, that branch of Dalley’ s motion for summary judgment dismissing Harris’s claim for intentional infliction of emotional distress is granted. To establish a claim for the tort of intentional infliction of emotional distress, "a plaintiff must establish … extreme and outrageous conduct; … intent to cause, or disregard of a substantial probability of causing, severe [**10] emotional distress; … a causal connection between the conduct and the injury; and … severe emotional distress" (Suarez v Bakalchuk, 66 AD3d 419, 887 N.Y.S.2d 6 [1st Dept 2009]; see also Howell v New York Pout Co., 81 N.Y.2d 115, 612 N.E.2d 699, 596 N.Y.S.2d 350 [1993]). The conduct complained of must be "so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency, and to be regarded as atrocious and utterly intolerable in a civilized community" (Murphy v American Home Prods. Corp, 58 NY2d 293, 303, 448 N.E.2d 86, 461 N.Y.S.2d 232 [1983] [internal quotations marks and citation omitted]).

Here, Dalley demonstrates that his alleged conduct, consisting of, inter alia, inducing Harris to sell her house to Young, not disclosing his signatory authority in the Beneficial [*11] account to Harris, and authorizing the disbursement of the loan proceeds from the Beneficial account, while deplorable, if true, did not rise to the level of being so extreme, outrageous and beyond the bounds of human decency to constitute the requisite conduct necessary to sustain a claim for intentional infliction of emotional distress under prevailing case law (see Murphy v American Home Prods. Corp., 58 NY2d 293, 448 N.E.2d 86, 461 N.Y.S.2d 232, supra). Further, Dalley establishes that [**11] Harris failed to make any evidentiary showing that the alleged conduct caused any mental or physical symptom or injury that would indicate the existence of severe emotional distress (see Howell v New York Post Co., 81 NY2d 115, 612 N.E.2d 699, 596 N.Y.S.2d 350, supra; see also Elbogen v Esikoff, 266 AD2d 15, 697 N.Y.S.2d 614 [1st Dept 1999]).

Additionally, a cause of action for intentional infliction of emotional distress should not be entertained "where the conduct complained of falls well within the ambit of other traditional tort liability" (Fischer v Maloney, 43 NY2d 553, 558, 373 N.E.2d 1215, 402 N.Y.S.2d 991 [1978]). As noted by Dalley, the alleged conduct attributed to him by Harris falls entirely with the scope of Harris’s more traditional tort claims for, inter alia, fraud and breach of fiduciary duties.

Therefore, Dalley’s motion, in Motion Sequence No. 009, is granted only to the extent of granting summary judgment dismissing Harris’s fourteenth cause of action for intentional infliction of emotional distress as asserted against him."