Opinion
March 28, 1996
Appeal from the Supreme Court, New York County (Richard Lowe, III, J.).
Fairly construed, the amended complaint alleges that defendant partner, prior to dissolution, went to defendant law firm and offered them virtually all of plaintiff's class action arbitration practice in exchange for making him a partner in the defendant firm, and that defendant partner's pre-resignation discussions with his prospective new firm included a surreptitious pre-resignation agreement that defendant firm would assist defendant partner in concealing the true nature of their actions from plaintiff until his resignation. This constitutes an adequate pleading of a breach of defendant partner's fiduciary duty to plaintiff ( see, Graubard Mollen Dannett Horowitz v Moskovitz, 86 N.Y.2d 112). It is also sufficiently alleged that defendant law firm, though not itself in a fiduciary relationship with plaintiff, induced a breach of fiduciary duty by another ( see, Newell Co. v Rice, 158 A.D.2d 993).
No valid cause of action has been stated against defendant law firm for breach of contract with plaintiff, there being no discernible allegation of an enforceable oral contract ( see, Ponte Sons v American Fibers Intl., 222 A.D.2d 271). The causes of action sounding in fraud lack sufficient details of the facts and circumstances constituting the wrong ( see, Mance v Mance, 128 A.D.2d 448, 449, lv dismissed and denied 70 N.Y.2d 668). Plaintiff, rather than having been lulled into a false sense of security, immediately perceived what defendants allegedly were attempting to do, and acted immediately to protect himself. Alleged pre-resignation assurances made by defendants that, in all interactions between defendant partner and defendant law firm, they would look after the interests of plaintiff are non-actionable ( see, e.g., Saunder v Baryshnikov, 110 A.D.2d 511, 512, appeal dismissed 65 N.Y.2d 637). No cause of action for tortious interference with a prospective economic advantage is stated, there being insufficient allegations of disinterested malevolence ( see, Spielman v Acme Natl. Sales Co., 169 A.D.2d 218, 224). We also note there is no private right of action for a violation of the Code of Professional Responsibility ( see, Weintraub v Phillips, Nizer, Benjamin, Krim Ballon, 172 A.D.2d 254).
Summary judgment motions are to be made only after issue has been joined ( see, Matter of Westchester Express v State Ins. Fund, 153 A.D.2d 803), a rule to which strict adherence is required ( see, Shah v Shah, 215 A.D.2d 287, 289). Therefore, summary judgment on defendant partner's newly pleaded counterclaim requiring that plaintiff render an accounting was premature. Further, issues of fact exist as to the scope of the partners' agreement ( see, Notar Servs. Corp. v Dalmazio, 110 A.D.2d 892, 893).
Concur — Sullivan, J.P., Rosenberger, Ross and Williams, JJ.