| Fletcher v Boies, Schiller & Flexner, LLP |
| 2010 NY Slip Op 06140 [75 AD3d 469] |
| July 20, 2010 |
| Appellate Division, First Department |
| Maryanne Fletcher, Appellant, v Boies, Schiller &Flexner, LLP, et al., Respondents, et al., Defendants. |
—[*1] Boies, Schiller & Flexner, LLP, New York (Robert J. Dwyer of counsel), forrespondents.
Judgment, Supreme Court, New York County (Richard B. Lowe, III, J.), entered March 19,2009, insofar as appealed from as limited by the briefs, dismissing the complaint as againstdefendants Boies, Schiller, Flexner, Hayes, Haazen, Lewicky and Boies, Schiller & Flexner,LLP, unanimously modified, on the law, to reinstate the first and third causes of action as againstdefendants Boies, Schiller & Flexner, LLP and Andrew Hayes, and otherwise affirmed, withoutcosts. Appeal from order, same court and Justice, entered December 26, 2008, unanimouslydismissed, without costs, as subsumed within the appeal from the judgment.
Plaintiff, a fashion model, pleaded that a prominent agency mismanaged her and lost orwithheld her crucial portfolio; that she had evidence of a scheme involving bogus expensescharged by that agency against other models; that images of her were profitably used by a largeretail chain, wrongfully and without her authorization, via a subsidiary; and that a second agencyhad interfered with bookings that would have earned her $275,000, and instead booked anothermodel for those jobs.
Plaintiff further pleaded that, when she consulted the Boies Schiller law firm and met withdefendant Hayes, she was persuaded to turn over a large body of self-gathered evidence and toldthat her claims were worth large, specified amounts, and that the firm, and defendant Hayesconcealed a conflict of interest between her and existing classes in state and federal actions;excluded her from the federal class action; subordinated her interests to those of other classmembers; participated lackadaisically in settlement discussions; and failed to timely file a claimin a crucial bankruptcy proceeding while successfully prosecuting the claim of the federal class.
The complaint should not have been dismissed insofar as it pleaded two causes of action formalpractice. Plaintiff has pleaded that, but for defendants' malpractice in failing to advise herproperly, she "would have avoided some actual ascertainable damage" (see IMO Indus. vAnderson Kill & Olick, 267 AD2d 10, 11 [1999]), [*2]including sufficient detail as to the "nature of" the underlying claim(see Reid v Druckman, 309 AD2d 669, 670 [2003]). She need not, at this early stage,offer a detailed pleading to support her quantifying her alleged loss (see Proskauer RoseGoetz & Mendelsohn v Munao, 270 AD2d 150, 151 [2000]).
All of the remaining causes of action pressed on appeal were properly dismissed. Plaintiffimplicitly concedes that she pleaded no wrongdoing by the individual defendants-respondentsother than Hayes, and it is no answer to state that she would have used discovery in an attempt todiscover facts showing those defendants to be potentially liable. Her fraud claim was properlydismissed as it was "premised upon representations of future intent that are nonactionable sincethere is no allegation that would support an inference that the representations were made with apresent intention that they would not be carried out" (see Papp v Debbane, 16 AD3d 128 [2005]).
Plaintiff's cursory request for leave to replead was properly denied because there was noproposed pleading accompanied by an affidavit of merit (see HT Capital Advisors v OpticalResources Group, 276 AD2d 420 [2000]). Plaintiff's argument that "facts essential to justifyopposition may exist but cannot then be stated" (CPLR 3211 [d]), is improperly made for thefirst time on appeal (see Copp vRamirez, 62 AD3d 23, 31 [2009], lv denied 12 NY3d 711 [2009]). With norequest made to Supreme Court, plaintiff has never made the necessary showing that there is areasonable basis for her belief that facts essential to opposing dismissal may exist (see Putter v North Shore Univ. Hosp.,7 NY3d 548, 554 [2006]). Concur—Gonzalez, P.J., DeGrasse, Freedman,Manzanet-Daniels and RomÁn, JJ.