| Yong Wong Park v Wolff & Samson, P.C. |
| 2008 NY Slip Op 09176 [56 AD3d 351] |
| November 20, 2008 |
| Appellate Division, First Department |
| Yong Wong Park et al., Appellants, v Wolff and Samson,P.C., et al., Respondents. |
—[*1] Curtis, Mallet-Prevost, Colt & Mosle LLP, New York (T. Barry Kingham of counsel), forrespondents.
Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered June 12,2007, which granted defendants' motion to dismiss the complaint for failure to state a cause ofaction, unanimously affirmed, with costs.
Plaintiffs' claim that defendants committed legal malpractice by advising plaintiff YongWong Park to plead guilty to a federal charge of trafficking in counterfeit goods without advisinghim of the immigration consequences of his guilty plea, or by giving him wrong legal adviceabout such consequences, is barred by Park's undisturbed guilty plea (see Carmel vLunney, 70 NY2d 169, 173 [1987]). We reject plaintiffs' argument that innocence need notbe alleged where, as here, the alleged malpractice related to a collateral matter (deportation)rather than the core of the criminal action (see Biegen v Paul K. Rooney, P.C., 269 AD2d264 [2000], lv denied 95 NY2d 761 [2000]; see also Casement v O'Neill, 28 AD3d 508 [2006] [guilty plea barsmalpractice claim regardless of plaintiff's subjective reasons for pleading guilty]). There are otherdeficiencies in the legal malpractice claim requiring its dismissal: it does not allege that "but for"defendants' alleged malpractice Park would not have pleaded guilty (see Carmel, 70NY2d at 173); and to the extent the claim is based on the allegation that defendants affirmativelygave Park wrong advice about the immigration consequences of a guilty plea, such allegationconflicts with, and is precluded by, contrary factual findings made in the federal proceedings inwhich Park sought to vacate his plea on the ground of ineffective assistance of counsel (seeSiddiqi v Ober, Kaler, Grimes & Shriver, 224 AD2d 220 [1996], lv denied 88 NY2d812 [1996]). Plaintiffs' claim for breach of fiduciary duty, based on the allegation that one ofdefendants falsely testified in the federal hearing that he never gave Park any advice as to theimmigration consequences of a guilty plea, is likewise barred by collateral estoppel. Plaintiffs'claim for negligent infliction of emotional distress, which alleges that Park's wife and childrensuffered emotional distress as a result of Park's conviction, was properly dismissed for lack of anallegation showing any kind of duty owed by defendants to Park's wife and children (see Sheila C. v Povich, 11 AD3d120, 130 [2004]), and also because the alleged malpractice is not so [*2]extreme and outrageous as to be utterly intolerable in a civilizedcommunity (see id.; Wilson v City of New York, 294 AD2d 290, 295 [2002]).Concur—Tom, J.P., Saxe, Sweeny, Catterson and DeGrasse, JJ.