| O'Callaghan v Brunelle |
| 2011 NY Slip Op 04095 [84 AD3d 581] |
| May 17, 2011 |
| Appellate Division, First Department |
| James G. O'Callaghan, Appellant, v George Brunelle, Esq.,et al., Respondents, et al., Defendants. |
—[*1] Wilson, Elser, Moskowitz, Edelman & Dicker, New York (Robert J. Pariser of counsel), forrespondents.
Order, Supreme Court, New York County (Paul G. Feinman, J.), entered June 14, 2010,which, in an action alleging, inter alia, legal malpractice, granted defendants' motion to dismissthe complaint, unanimously affirmed, with costs.
Plaintiff was charged with violating various rules of the New York Stock Exchange (NYSE)and the Securities Exchange Commission (SEC) for engaging in prohibited conduct whileworking as a floor trader, by simultaneously initiating and executing transactions on behalf of acompany in which he had investment discretion. He was convicted of the charges at adisciplinary proceeding and commenced this action against his attorneys for failure to call acertain witness during the proceeding.
The documentary evidence in support of the motion, including decisions from the NYSE andSEC, refuted plaintiff's allegations that defendants' failure to call the witness, who consented tothe NYSE's Hearing Panel's finding that he engaged in conduct constituting improper tradingarrangements and violated various rules, constituted legal malpractice and established a defenseas a matter of law warranting dismissal of the complaint (see Minkow v Sanders, 82 AD3d 597 [2011]; see alsoCPLR 3211 [a] [1]). Contrary to plaintiff's contention, it is apparent from the motion court'sdecision that it properly treated the instant motion as one to dismiss and not one for summaryjudgment (compare Sokol v Leader,74 AD3d 1180 [2010]).
Plaintiff also failed to state a cause of action for legal malpractice, which requires that acomplaint allege "the negligence of the attorney; that the negligence was the proximate cause ofthe loss sustained; and actual damages" (Leder v Spiegel, 31 AD3d 266, 267 [2006], affd 9 NY3d836 [2007], cert denied 552 US 1257 [2008]; see CPLR 3211 [a] [7]). Plaintifffailed to establish defendants' negligence by showing that they did not exercise the ordinaryreasonable skill and knowledge commonly possessed by a member of the legal profession (see AmBase Corp. v Davis Polk &Wardwell, 8 NY3d 428, 434 [2007]), and failed to establish proximate cause in that but[*2]for defendants' alleged malpractice, he could have prevailedon the underlying claim (see Fenster vSmith, 39 AD3d 231 [2007];Bishop v Maurer, 33 AD3d 497, 498 [2006], affd 9 NY3d 910 [2007]).Concur—Mazzarelli, J.P., Sweeny, Acosta, Renwick and DeGrasse, JJ.