| Biberaj v Acocella |
| 2014 NY Slip Op 06165 [120 AD3d 1285] |
| September 17, 2014 |
| Appellate Division, Second Department |
[*1]
| Sokol Biberaj, Respondent-Appellant, v FrankA. Acocella, Appellant-Respondent. |
Traub Lieberman Straus & Shrewsberry LLP, Hawthorne, N.Y. (Jeremy P.Monosov and Stephen D. Straus of counsel), for appellant-respondent.
Edelstein & Grossman, New York, N.Y. (Jonathan L. Edelstein of counsel), forrespondent-appellant.
In an action, inter alia, to recover damages for fraud and legal malpractice, thedefendant appeals from so much of an order of the Supreme Court, Westchester County(Giacomo, J.), entered October 2, 2012, as denied those branches of his motion whichwere for summary judgment dismissing the causes of action to recover damages forfraud, money had and received, constructive trust, and breach of contract, and theplaintiff cross-appeals, as limited by his brief, from so much of the same order as grantedthose branches of the defendant's motion which were for summary judgment dismissingthe causes of action to recover damages for breach of fiduciary duty, negligence, andlegal malpractice.
Ordered that the order is modified, on the law, (1) by deleting the provision thereofgranting that branch of the motion which was for summary judgment dismissing thecause of action to recover damages for legal malpractice, and substituting therefor aprovision denying that branch of the motion, and (2) by deleting the provisions thereofdenying those branches of the motion which were for summary judgment dismissing thecauses of action to recover damages for fraud and breach of contract, and substitutingtherefor a provision granting those branches of the motion; as so modified, the order isaffirmed insofar as appealed and cross-appealed from, without costs ordisbursements.
The plaintiff and the defendant, an attorney licensed in New York, met in or about2001, when the plaintiff sought the defendant's legal representation. The partiesestablished a business relationship, which later evolved into a friendship. In 2007, uponthe defendant's recommendation, the plaintiff made an investment of $260,000 in anenterprise known as Agape World (hereinafter Agape), which purportedly used investormoney to provide bridge loans to businesses, and paid interest to the investors. Thedefendant allegedly also invested large sums of his own money in Agape. In 2008, it wasrevealed that Agape was, in fact, a Ponzi scheme, in which new investors' funds wereused to pay earlier investors' returns. The plaintiff and the defendant allegedly lost theirinvestments in Agape.
[*2] In July 2009, theplaintiff commenced the instant action to recover damages for fraud (first cause ofaction), breach of fiduciary duty (second cause of action), negligence (third cause ofaction), money had and received (fourth cause of action), legal malpractice (fifth cause ofaction), based on a constructive trust (sixth cause of action), and for breach of contract(seventh cause of action). After issue was joined, the defendant moved for summaryjudgment dismissing the complaint. The Supreme Court granted those branches of thedefendant's motion which were for summary judgment dismissing the causes of action torecover damages for breach of fiduciary duty, negligence, and legal malpractice, anddenied the remaining branches of the motion. The defendant appeals and the plaintiffcross-appeals from stated portions of this order.
To recover damages for legal malpractice, a plaintiff must prove the existence of anattorney-client relationship (seeBerry v Utica Natl. Ins. Group, 66 AD3d 1376 [2009]; Rechberger v Scolaro, Shulman,Cohen, Fetter & Burstein, P.C., 45 AD3d 1453 [2007]; Moran v Hurst, 32 AD3d909, 910 [2006]). A plaintiff is also required to establish that the defendant failed toexercise the ordinary reasonable skill and knowledge commonly possessed by a memberof the legal profession, and that the breach of this duty proximately caused the plaintiff tosustain actual and ascertainable damages (see Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8NY3d 438, 442 [2007]; Gershkovich v Miller, Rosado & Algios, LLP, 96 AD3d716, 717 [2012]). "To succeed on a motion for summary judgment dismissing thecomplaint in a legal malpractice action, the defendant must present evidence inadmissible form establishing that the plaintiff is unable to prove at least one essentialelement of his or her cause of action alleging legal malpractice" (Scartozzi v Potruch, 72 AD3d787, 789-790 [2010]; see Gershkovich v Miller, Rosado & Algios,LLP, 96 AD3d at 717).
Here, in support of that branch of his motion which was for summary judgmentdismissing the cause of action to recover damages for legal malpractice, the defendantmet his prima facie burden of establishing that he had no attorney-client relationship withthe plaintiff referable to the plaintiff's investment in Agape (see Volpe vCanfield, 237 AD2d 282, 283 [1997]). In opposition, however, the plaintiff raised atriable issue of fact as to the existence of an attorney-client relationship in that context.Moreover, with regard to this cause of action, the defendant failed to show, prima facie,that he exercised the ordinary reasonable skill and knowledge commonly possessed by amember of the legal profession in allegedly advising the plaintiff regarding Agape, orthat the alleged breach of this duty did not proximately cause the plaintiff to sustaindamages. Accordingly, the Supreme Court should have denied that branch of thedefendant's motion which was for summary judgment dismissing the cause of action torecover damages for legal malpractice.
The Supreme Court should have granted those branches of the motion which werefor summary judgment dismissing the causes of action to recover damages for fraud andbreach of contract as duplicative of the cause of action to recover damages for legalmalpractice, because they arose from the same facts as the legal malpractice cause ofaction, and do not allege distinct damages (see Palmieri v Biggiani, 108 AD3d 604, 608 [2013];Scartozzi v Potruch, 72 AD3d at 789).
The parties' remaining contentions are without merit. Rivera, J.P., Roman, Sgroi andLaSalle, JJ., concur.