| Carl v Cohen |
| 2008 NY Slip Op 08252 [55 AD3d 478] |
| October 30, 2008 |
| Appellate Division, First Department |
| John R. Carl, Appellant, v Joel Cohen, Esq.,Respondent. |
—[*1] Frankfurt Kurnit Klein & Selz P.C., New York (Ronald C. Minkoff of counsel), forrespondent.
Order, Supreme Court, New York County (Carol Robinson Edmead, J.), entered June 18,2007, which, to the extent appealed from, granted defendant's motion to dismiss plaintiff's claimsfor tortious interference with prospective business advantage and fraud, unanimously affirmed,without costs.
The fraud claim was duplicative of the legal malpractice claim since it was "not based on anallegation of independent, intentionally tortious" conduct (Sabo v Alan B. Brill, P.C., 25AD3d 420, 421 [2006]) and failed to allege "separate and distinct" damages (White of LakeGeorge v Bell, 251 AD2d 777, 778 [1998], lv dismissed 92 NY2d 947 [1998]). Thecourt did not improvidently exercise its discretion in denying leave to replead the fraud claimbecause the purportedly new evidence was insufficient to allege independent conduct not alreadyincluded in the legal malpractice claim.
The tortious interference claim was insufficient because it failed to allege that defendant haddirected his fraudulent conduct at a specific third party, that said party would have hired plaintiffbut for defendant's misconduct, and that defendant's wrongful conduct was motivated solely byan intent to injure plaintiff (see Carvel Corp. v Noonan, 3 NY3d 182 [2004]).Concur—Lippman, P.J., Mazzarelli, Williams, Buckley and Renwick, JJ. [See2007 NY Slip Op 31665(U).]