Summary
granting defendants' motion to dismiss a legal malpractice action due to plaintiffs' inability "to demonstrate that, but for defendant's conduct," plaintiffs would have been a successful bidder at a Bankruptcy Court hearing
Summary of this case from Cannonball Fund, Ltd. v. Marcum & Kliegman, LLPOpinion
663
April 4, 2002.
Order, Supreme Court, New York County (Sheila Abdus-Salaam, J.), entered on or about February 22, 2001, which, inter alia, granted defendants' motion to dismiss the complaint pursuant to CPLR 3211(a)(7), unanimously affirmed, without costs.
ELLEN R. WERTHER, for plaintiffs-appellants.
CHARLES D. HELLMAN, for defendants-respondents.
Before: Mazzarelli, J.P., Andrias, Saxe, Wallach, Marlow, JJ.
In this action seeking damages for legal malpractice based on defendants' alleged failure to bring plaintiffs' asset purchase proposal to the attention of the Bankruptcy Court during a hearing to determine the buyer for the estate of the debtor, the motion court properly determined that plaintiffs had no cause of action for malpractice, since plaintiffs would be unable to demonstrate that, but for defendants' conduct, they would have been the successful bidder. The successful bidder's proposal was ready at the hearing and was submitted without conditions, while plaintiffs required additional time to conduct a due diligence investigation and plaintiff American Industrial Acquisition Corp. was clearly unwilling to go forward without certain conditions to prevent forfeiture of its deposit. In addition, plaintiffs' claim of damages was impermissibly speculative (see, Phillips-Smith Specialty Retail Group II, L.P. v. Parker Chapin Flattau Klimpl, LLP., 265 A.D.2d 208, 209-210, lv denied 94 N.Y.2d 759). Plaintiff Turk's claims for breach of contract and breach of fiduciary duty were properly dismissed as duplicative of the insufficient malpractice claim (Nevelson v. Carro, Spanbock, Kaster Cuiffo, 290 A.D.2d 399, 736 N.Y.S.2d 668), and, under the circumstances, his tortious interference claims were also properly dismissed for the same reason. The other plaintiffs' claims for tortious interference were properly dismissed since it was plain that those plaintiffs would not be able to demonstrate that defendants' conduct was a proximate cause of their alleged loss (see, J.C. Klein, Inc. v. Forzley, 289 A.D.2d 79, 734 N.Y.S.2d 157).
We have considered plaintiffs' other contentions and find them unavailing.
Motion seeking leave to strike reply brief and for other related relief denied.
THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT.