| Kurman v Schnapp |
| 2010 NY Slip Op 03786 [73 AD3d 435] |
| May 4, 2010 |
| Appellate Division, First Department |
| Marc Kurman, Appellant, v Robert Schnapp,Respondent. |
—[*1] Traub Lieberman Straus & Shrewsberry LLP, Hawthorne (Jonathan Harwood of counsel),for respondent.
Order, Supreme Court, New York County (Michael D. Stallman, J.), entered December 2,2009, which granted defendant's motion to dismiss the complaint, unanimously modified, on thelaw, to deny the motion insofar as it sought to dismiss the causes of action for violation ofJudiciary Law § 487 and breach of fiduciary duty, and otherwise affirmed, without costs.
Plaintiff stated a cause of action under Judiciary Law § 487 by alleging that defendantdeceived or attempted to deceive the court with a fictitious letter addressed to him from theformer licensing director of the City's Taxi and Limousine Commission (TLC) that stated, interalia, that plaintiff was under a lifetime ban on owning any licenses with the TLC (see Amalfitano v Rosenberg, 12 NY3d8, 14 [2009]). Plaintiff further sufficiently alleged specific damages that could not haveoccurred in the absence of defendant's conduct (see id. at 15). The 2008 affidavit by theTLC's former licensing director offered by defendant in support of his motion fails todemonstrate conclusively that plaintiff has no cause of action (see Lawrence v Graubard Miller, 11NY3d 588, 595 [2008]).
Plaintiff's breach of fiduciary duty cause of action is not duplicative of his legal malpracticecause of action, since it is premised on separate facts that support a different theory (see Ulico Cas. Co. v Wilson, Elser,Moskowitz, Edelman & Dicker, 56 AD3d 1, 9-10 [2008]; Weil, Gotshal & Manges, LLP v FashionBoutique of Short Hills, Inc., 10 AD3d 267, 271 [2004]). As alleged, plaintiff's breachof fiduciary duty claim arose in December 2006, when defendant commenced his litigationactivities against plaintiff in the Westchester County Supreme Court action, and continuedthrough defendant's 2007 disqualification from representing the Queens Medallion Leasing Inc.defendants, and thereafter. In contrast, plaintiff's legal malpractice claim is based upondefendant's alleged 2005 and 2006 "communications with the TLC that may have left theimpression that [defendant] was still representing [plaintiff] at that time."
Any cause of action for legal malpractice by plaintiff against defendant was time-barred after2002, since the allegation that defendant may have left TLC with the impression that he was stillrepresenting plaintiff in 2005 and 2006 does not establish a continuing attorney-clientrelationship between plaintiff and defendant after 1999 (see CPLR 214).
However, plaintiff stated a cause of action for breach of fiduciary duty because an [*2]attorney is prohibited from representing parties whose interests areadverse to his or her former client in matters that are substantially related (see Solow v Grace& Co., 83 NY2d 303, 308 [1994]; Greene v Greene, 47 NY2d 447, 453 [1979]).Concur—Andrias, J.P., Friedman, Catterson, McGuire and RomÁn, JJ.