United States District Court, S.D. New YorkAug 3, 2006
05 CV 4296 (TPG) (S.D.N.Y. Aug. 3, 2006)

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05 CV 4296 (TPG).

August 3, 2006


Pro se plaintiff Marcia Rafter brings this action alleging that defendants, whom she had retained to represent her in a state court employment discrimination action, committed legal malpractice and other wrongful acts in connection with their legal representation of plaintiff.

Defendants are the law firm of Liddle Robinson, LLP, and a number of attorneys who were associated with that firm during the period it represented plaintiff. Liddle Robinson is the successor-in-interest to defendant Liddle, O'Connor, Finkelstein, Robinson ("LOFR"), which was the name of the firm at the time it began representing plaintiff.

Defendants have moved to dismiss the amended complaint pursuant to Fed.R.Civ.P. 12(c) or, in the alternative, for summary judgment on all counts. Defendants argue that the court has no subject matter jurisdiction over plaintiff's claims, that plaintiff's claims are barred by the statute of limitations, and that the amended complaint fails to state a claim.

Defendants' motion relies upon a number of documents not contained in the pleadings and will therefore be treated as a motion for summary judgment.

Plaintiff opposes defendants' motion and has cross-moved for summary judgment on the merits of her claim. In support, plaintiff has submitted an affidavit detailing defendants' alleged misconduct as well as numerous exhibits, some of which are court documents related to the underlying action.

Defendants' motion for summary judgment is granted. Plaintiff's motion for summary judgment is denied.


Discovery with regard to the merits of plaintiff's claims has not yet begun. Defendants state that they are unable to fully defend against plaintiff's claims without access to the litigation file in the underlying action, the original of which they forwarded to plaintiff's new counsel in June 2002. Defendants have, however, submitted affidavits by two of plaintiff's former attorneys, defendants Jeffrey Liddle and James Batson, disputing many of plaintiff's claims.

The following is a summary of the facts that can presently be determined based upon the affidavits and exhibits submitted by the parties, as well as the parties' contentions with respect to disputed facts, most of which relate to plaintiff's substantive allegations that defendants committed legal malpractice and other forms of attorney misconduct.

In June 1989, plaintiff consulted with defendant Jeffrey Liddle, an attorney who had been an acquaintance of hers, regarding a possible employment discrimination action against her former employer, Citibank N.A. Plaintiff asserts that when she first consulted Liddle, he assessed her claims to be worth $25 million and promised her that the case would take no longer than three years. The amended complaint alleges that Liddle represented himself and his firm highly to plaintiff, as an aggressive, highly successful attorney with significant experience in employment law.

Shortly thereafter, Liddle's law firm, then known as Liddle, O'Connor, Finkelstein Robinson, began preliminary work on plaintiff's action against Citibank, although no formal retainer agreement was signed until January 4, 1990.

On or about September 25, 1989, LOFR filed a complaint (the "underlying complaint") on plaintiff's behalf against Citibank in New York State Supreme Court. The Underlying Complaint alleged that plaintiff was employed by Citibank from November 1980 through June 1988. The underlying complaint alleged that, during this period, plaintiff received lower compensation than her male co-workers solely because of her sex. The underlying complaint also alleged that plaintiff was subject to verbal abuse and hostility by her co-workers on the basis of her sex. The underlying complaint contained two counts. The first count, for discriminatory wages, was brought under the New York Equal Pay Act, N.Y. Labor Law § 194. The second count, for sexual harassment, was brought under the New York Human Rights Law § 291 et seq.

Plaintiff states that based upon the representations Liddle made to her about the value of her case, and his and LOFR's qualifications, plaintiff engaged LOFR to represent her. The terms of LOFR's representation are set forth in a January 4, 1990 retainer agreement, which is signed by plaintiff. Under the retainer agreement, plaintiff was responsible for disbursements regardless of outcome. Attorneys' fees were to be billed at LOFR's usual hourly rates, but were to be paid only in the event LOFR was successful on plaintiff's claims, and would then be paid from any amount recovered. In addition, the retainer agreement provided for a "contingency/success fee" of 10% of the first $500,000 recovered and 5% of any additional sum, on top of their attorneys' fee.

According to plaintiff, defendants turned her case into a "13 year nightmare" by neglecting the case and using it as a "training ground for almost every new lawyer defendants hired." Plaintiff asserts that defendants filed only two motions during the ten years they represented her, one of which was to end Citibank's ten-day long deposition of plaintiff. Plaintiff states that during the ten years they represented her, defendants never served any subpoenas, failed to depose critical Citibank employees, and failed to complete discovery.

Plaintiff also alleges that defendants prolonged plaintiff's case in order to garner free publicity for LOFR. According to plaintiff, LOFR arranged to have plaintiff's case featured prominently in newspaper articles and on national television. Plaintiff claims that, on one occasion, Liddle released humiliating information about plaintiff to the Wall Street Journal without her permission.

Plaintiff asserts that, contrary to her expectations, Liddle himself did little work on her case, spending a total of 45 hours on it over the ten-year period she was represented by LOFR, and that most of those hours occurred in the first two years. Plaintiff alleges that Liddle never personally attended any court hearings, and instead sent incompetent and inexperienced attorneys to make court appearances and conduct important depositions. Plaintiff states that she complained repeatedly to Liddle, both about the slow progress of the case and the "lack of experienced attorneys assigned to the case," but that this was to no avail.

Plaintiff also claims that her employment discrimination lawsuit should never have been filed in state court. Plaintiff contends that defendants' failure to file the action in federal court under Title VII constitutes legal malpractice. Plaintiff also faults defendants for not urging her to file a discrimination complaint with the EEOC. Plaintiff contends that the EEOC would have conducted discovery efficiently and without any expense to plaintiff.

In his affidavit, Liddle disputes plaintiff's allegations that inexperienced attorneys were assigned to her case. Liddle states that he never promised plaintiff that he would personally handle plaintiff's case, and that most of the work was, in fact, done by Paul T. Shoemaker, an experienced partner at LOFR. After Shoemaker departed the firm in 1995, defendant Batson, another LOFR attorney, handled plaintiff's case.

Liddle asserts that LOFR attempted to vigorously prosecute plaintiff's case but was thwarted by Citibank's resistance to discovery and continual delay. Defendants served four sets of discovery demands on Citibank, at least two of which were met with motions for a protective order. Eventually, LOFR's motion to compel discovery was successful.

According to Liddle, a special master was assigned to deal with the numerous discovery issues raised by LOFR on behalf of plaintiff, but Citibank failed to comply with the special master's orders, arriving at each conference with excuses for their dereliction.

Liddle asserts that, despite Citibank's intense opposition, LOFR took eleven depositions. With only one exception, these depositions were conducted by Liddle or Shoemaker.

As to the decision to file in state rather than federal court, Liddle states that he counseled plaintiff against bringing a federal claim for sexual harassment under Title VII, fearing such a claim would permit Citibank to sidetrack and prolong the litigation. Furthermore, Liddle states that a claim under Title VII had already been precluded by plaintiff's failure to exhaust her administrative remedies before the New York State Division of Human Rights within the required 300 day limitations period, despite being advised of this requirement.

Instead, Liddle advised plaintiff to focus on her equal pay claim, and to file that claim under state law, the New York Equal Pay Act, N.Y. Labor Law § 194, which had a longer statute of limitations than the federal statute governing similar claims. Plaintiff insisted on bringing a state law sexual harassment claim in addition. Liddle states that he advised plaintiff that doing so would be unwise for basically the same reason he recommended against bringing a federal action, but plaintiff "overruled" him and a sexual harassment claim was included in the complaint.

Liddle also asserts that plaintiff was never told she would recover $25 million in the underlying action, but rather that she might receive somewhere between $900,000 and $1.2 million.

In 1998, the relationship between LOFR and plaintiff began to seriously deteriorate. Liddle asserts that this deterioration was due to plaintiff's failure to provide contact information or return the firm's phone calls, and because of her "increasingly hostile and irrational" behavior.

On June 11, 1999, LOFR moved to withdraw as counsel and to fix an attorney's charging lien, in the event plaintiff would subsequently obtain any recovery in her case. In support of this motion, Liddle submitted an affidavit to the court asserting that LOFR could no longer represent plaintiff because she refused to provide any reasonable contact information, failed to return the firm's messages, and for other reasons the firm felt it was unable to divulge due to the attorney/client privilege.

On June 30, 1999, Justice Diane Lebedeff granted the motion and referred the matter of a charging lien to a Special Referee named Julius Birnbaum.

On September 1, 1999, Justice Lebedeff granted a motion that had been filed by plaintiff to require LOFR to turn over her case file to her. In the same order, Justice Lebedeff stated:

The balance of plaintiffs motion is denied, with plaintiff reserving for later disposition any claims relating to misconduct of her former counsel and undue delay in the matter as set forth in the motion papers. . . .

The Special Referee conducted hearings to determine an appropriate charging lien on October 14, 1999, November 10, 1999, November 18, 1999, and December 15, 1999. Plaintiff hired a new attorney, Jeffrey Eisenberg, to assist her at these hearings in contesting LOFR's request for a charging lien. To determine the proper amount of LOFR's charging lien, the Special Referee heard extensive evidence on the nature and quality of defendants' representation of plaintiff in the underlying action.

Plaintiff alleges that Liddle lied under oath at these hearings, and that defendants failed to produce the true retainer agreement plaintiff signed but instead submitted a false retainer agreement to the Special Referee.

On January 21, 2000, the Special Referee issued a report highly critical of LOFR's representation of plaintiff. The report characterized LOFR's legal services as "proceeding at a snail's pace which, to my mind, almost borders on abandonment of the case by the Liddle firm." The report briefly chronicled the slow and "sporadic" rate of litigation in plaintiff's case by means of an eleven-page catalogue of the contents of the file that LOFR had prepared in connection with its turning over of the file to her. The referee found that LOFR's request for a charging lien of $343,199.27, calculated by subtracting the $12,485.30 plaintiff had already paid to LOFR for disbursements from LOFR's total bill of $355,684.57, was "ridiculous" and recommended that the charging lien be set at $50,000.

In an order dated March 23, 2000, Justice Lebedeff disaffirmed the referee's report, finding that it was based upon a conclusion outside the scope of the reference. The matter was then reassigned to another special referee. It is unclear whether those proceedings culminated in any definitive ruling with regard to LOFR's charging lien.

Approximately two years later, plaintiff retained new counsel, Kelly Balber, LLP, to replace LOFR and represent her in the underlying action. On July 12, 2002, plaintiff, LOFR, and Kelly Balber entered into a letter agreement regarding attorneys' fees owed to LOFR. Pursuant to that agreement, all disbursements owed to the two firms were to be paid off the top of any sum recovered. Attorneys' fees up to a total of $640,000 were then to be divided equally between the two firms, after which attorneys' fees were to be split, 75% to Kelly Balber and 25% to LOFR. As part of the agreement, LOFR also agreed "to provide reasonable assistance to Kelly Balber, LLP, in its preparation for trial."

By this time, LOFR had become Liddle Robinson, LLP. For convenience, this opinion will continue to refer to the firm as LOFR.

Soon thereafter, plaintiff settled her case for an amount she claims to be $850,000. On August 29, 2002, pursuant to the July 12, 2002 agreement, Kelly Barber forwarded a check to LOFR in the amount of $149,114.12, for the remaining unpaid portion of LOFR's disbursements and attorneys' fees.

Plaintiff then commenced this action on April 29, 2005.


Defendants move to dismiss the amended complaint on the grounds that the court lacks subject matter jurisdiction over plaintiff's claims. Defendants also assert that all causes of action contained in the amended complaint are barred by the statute of limitations and fail to state a claim.

Rulings at the Outset

The amended complaint contains 19 counts. These are (1) Violation of and Conspiracy to Violate RICO, 18 U.S.C. § 1961; (2) legal malpractice; (3) negligence; (4) defendants were incompetent; (5) fraud; (6) breach of contract; (7) defendant's purposefully and willfully harassed and humiliated plaintiff; (8) intentional infliction of emotional distress; (9) perjury; (10) defamation; (11) loss of income; (12) defendants' caused irreparable harm; (13) breach of fiduciary duty; (14) breach of right to privacy; (15) obstruction of justice; (16) continuing wrongs and continuing violations; (17) breach of contract; (18) violation of § 487 of the New York State Judiciary Law; and (19) violation of Client Bill of Rights and attorney misconduct.

The Seventh, Ninth, Eleventh, Twelfth, Fifteenth, and Sixteenth Causes of Action must immediately be dismissed because there are no such causes of action under New York law.

The Seventeenth Cause of Action, for breach of contract, merely duplicates the Sixth Cause of Action and is therefore dismissed.

Furthermore, the Third, Fourth, and Nineteenth Causes of Action, complaining of defendants' negligence, incompetence, and attorney misconduct, merely duplicate the Second Cause of Action, for legal malpractice, and are dismissed.

Defendants move to dismiss each of the nine remaining causes of action — the First, Second, Fifth, Sixth, Eighth, Tenth, Thirteenth, Fourteenth, and Eighteenth Counts — on the grounds that they are either barred by the applicable New York statute of limitations or because they fail to state a claim. However, as a preliminary matter, the court must first address defendants' claim that the court lacks subject matter jurisdiction over this action.

Subject Matter Jurisdiction

Plaintiff claims that subject matter jurisdiction exists over this action because (1) her claim under the RICO statute is a federal claim giving the court jurisdiction under 28 U.S.C. 1331, and (2) diversity of jurisdiction existed at the time this action was filed, between plaintiff, a citizen of Colorado, and defendants, New York citizens.

Defendants challenge both bases of jurisdiction. Defendants assert that plaintiff's only federal claim, under the RICO statute, must be dismissed for failure to state a claim and because it is barred by the statute of limitations.

With respect to diversity jurisdiction, defendants argue that all the available evidence suggests that plaintiff a citizen of New York, not Colorado, at the time she filed this action. Defendants point out that the address provided for plaintiff on the summons and complaint, and the amended complaint, is a New York address. In addition, it appears that plaintiff filed with the Clerk's office two notifications of a change of address to a post office box in Denver, Colorado, the first time on June 8, 2005 — approximately six weeks after this action was filed — and then again on June 15, 2005. Defendants assert that this evidence shows that plaintiff was a citizen of New York when she filed this action and that, defendants being New York citizens as well, there is no diversity of citizenship.

In reply, plaintiff insists that she was not domiciled in New York at the time she filed this action. Plaintiff states that the New York address contained in the pleadings is for a mail service, and has submitted an invoice from the mail service to substantiate this claim.

The court finds that plaintiff's sworn affidavit stating that she was domiciled in Colorado at the time she filed this action, coupled with her explanation that the New York address used in her pleadings was a mail service, rather than the address of a New York domicile, is sufficient to sustain her burden of proof that she was domiciled in Colorado when this action was filed. It is undisputed that defendants were domiciled in New York at that time. The court therefore has diversity jurisdiction over the subject matter pursuant to 28 U.S.C. § 1332.

RICO Claims

Plaintiff asserts a cause of action against defendants for violation of the Racketeer Influenced and Corrupt Organizations Act ("RICO"), 18 U.S.C.S. §§ 1961- 1968 (1994). Plaintiff brings her RICO claims under 18 U.S.C. 1962(c) and (d). Section 1962(c) makes it unlawful

for any person employed by or associated with any enterprise engaged in, or the activities of which affect, interstate or foreign commerce, to conduct or participate, directly or indirectly, in the conduct of such enterprise's affairs through a pattern of racketeering activity or collection of unlawful debt.

Section 1962(d) makes it unlawful to conspire to do so. Plaintiff alleges that LOFR is an enterprise under the statute, and that defendants conducted LOFR's affairs through a pattern of racketeering activity by repeatedly using the mail to send fraudulent billing statements.

The Supreme Court, in Agency Holding Corp. v. Malley-Duff Associates, Inc., 483 U.S. 143, 156 (1987), established a 4-year limitations period for civil RICO claims. Furthermore, the Court has held that a civil RICO claim accrues when a plaintiff knew or should have known of his injury. Rotella v. Wood, 528 U.S. 549, 553 (2000).

In the present case, plaintiff knew of the injuries she allegedly sustained as a result of defendants' conduct, i.e., the potential harm caused to her case because of LOFR's alleged incompetence and lack of zealous representation, by or before June 30, 1999, the day LOFR withdrew from the case.

The fact that plaintiff was aware of any alleged injuries is further highlighted by the fact that, less than two months after defendants withdrew from her case, plaintiff filed motion papers accusing defendants of attorney misconduct and undue delay. At hearings conducted before the referee later in 1999, plaintiff vigorously challenged LOFR's entitlement to a charging lien, alleging misconduct of various types and accusing Liddle and LOFR of fraud. Thus, any injury to plaintiffs case caused by defendants was well known to her by the time they withdrew and certainly no later than the end of 1999, more than four years before she filed this action.

Plaintiff claims that she nevertheless sustained injuries within the limitations period because, pursuant to an agreement between herself, LOFR, and Kelly Balber, a portion of her settlement was paid to LOFR in attorney fees and disbursements on approximately August 29, 2002. However, plaintiff knew of the likelihood of defendants' entitlement to attorney's fees and expenses in 1999. In fact, despite his finding that LOFR's requested charging lien was excessive, the referee did grant LOFR a $50,000 charging lien. Plaintiff therefore knew of this alleged injury — i.e., her potential liability to LOFR, in 1999, more than four years before the commencement of the present action. Plaintiff's RICO claims are barred by the statute of limitations.

Legal Malpractice

Under New York state law, the statute of limitations for a legal malpractice action is three years, regardless of whether the underlying theory is based in contract or tort. N.Y.C.P.L.R. § 214(6). It is well-established that a cause of action for legal malpractice accrues on the date of the allegedly improper action, and not the date of discovery. Lozano v. Peace, 05-CV-0174, 2005 U.S. Dist. LEXIS 40319 (E.D.N.Y. September 14, 2005); McCoy v. Feinman, 785 N.E.2d 714, 718 (N.Y. 2002); Shumsky v. Eisenstein, 750 N.E.2d 67, 69 (N.Y. 2001).

It is undisputed that defendants' motion to withdraw from representing plaintiff was granted on June 30, 1999, and that defendants did, in fact, cease representing plaintiff at that time. Furthermore, it is clear from the subsequent hearings before the referee, at which plaintiff vigorously challenged LOFR's claim for a charging lien, that the relationship between the parties had turned adversarial. Plaintiff hired new counsel to represent her at these hearings and accused Liddle and LOFR of fraud.

Therefore, the court finds that plaintiff's legal malpractice cause of action accrued by June 30, 1999. Because the present action was filed on April 29, 2005, well past the three-year limitations period, plaintiff's legal malpractice claim must be dismissed.

Plaintiff presents two arguments to avoid this result, each of which is without merit. First, plaintiff argues that the September 1, 1999 decision by Justice Lebedeff, which stated that plaintiff was "reserving" her claims of attorney misconduct for later disposition, somehow preserved her legal malpractice claim beyond the limitations period.

This argument has no merit because the legal malpractice and attorney misconduct claims plaintiff is asserting in the present action were not before the state court, and therefore could not have been "preserved" by that court. Furthermore, nowhere does Justice Lebedeff's opinion state that plaintiff's claims were preserved. The September 1, 1999 opinion could not and did not preserve plaintiff's claims beyond the limitations period.

Second, plaintiff argues that her claim is timely under the continuous representation doctrine, which provides that the statute of limitations for a legal malpractice claim may be tolled for the duration of a continuing attorney-client relationship. Plaintiff asserts that the July 12, 2002 agreement between LOFR and plaintiff's new counsel, Kelly Barber, which provided that LOFR would "provide reasonable assistance to Kelly Balber, LLP, in its preparation for trial," constituted a continuing representation of plaintiff by LOFR that was sufficient to toll the statute of limitations under the continuous representation doctrine. This argument fails under well-established New York law.

It is true that under the continuous representation doctrine the statute of limitations for a client's malpractice suit against his attorney is tolled until the attorney-client relationship is completed. See Glamm v. Allen, 439 N.E.2d 390, 393 (N.Y. 1982); Greene v. Greene, 436 N.E.2d 496, 500-01 (N.Y. 1982).

However, to invoke this rule, "there must be clear indicia of an ongoing continuous, developing, and dependent relationship between the client and the attorney." See Aaron v. Roemer, Wallens Mineaux, LLP, 707 N.Y.S.2d 711, 714 (N.Y.App.Div. 3d Dep't 2000); Luk Lamellen U. Kupplungbau GmbH v. Lerner, 560 N.Y.S.2d 787, 789 (N.Y.App. Div. 2d Dep't 1990).

The New York Court of Appeals has recognized that an attorney's withdrawal from representation completely severs the attorney-client relationship rendering the continuous representation doctrine inapplicable:

Even when further representation concerning the specific matter in which the attorney allegedly committed the complained of malpractice is needed and contemplated by the client, the continuous representation toll would nonetheless end once the client is informed or otherwise put on notice of the attorney's withdrawal from representation
Shumsky, 750 N.E.2d at 72-73.

In the present case, the continuous representation doctrine is inapplicable because there was no continuous, developing, or dependent relationship after June 30, 1999, the date on which defendants withdrew from plaintiff's case. Indeed, the relationship between plaintiff and defendants immediately turned adversarial, as plaintiff vigorously contested LOFR's request for a charging lien. Plaintiff hired new counsel to represent her at these adversarial hearings, and accused Liddle and LOFR of fraud. It was not until July 12, 2002, more than three years after LOFR had withdrawn from representing plaintiff, that LOFR agreed to assist her new counsel in the event of a trial — a trial that never took place.

Under these circumstances, plaintiff cannot be said to have had a continuous, developing, and dependent relationship with LOFR after June 30, 1999. Her cause of action against LOFR for legal malpractice accrued no later than June 30, 1999, and therefore expired well before this action was commenced on April 29, 2005. Plaintiff's legal malpractice claim is therefore dismissed.


Plaintiff asserts three separate claims of fraud. First, plaintiff claims that Liddle made certain fraudulent promises to plaintiff about her case. In particular, plaintiff claims that Liddle promised that her claims were worth $25 million, that the case would take no more than three years, and that he was an aggressive, highly successful lawyer who would actively pursue her case, when in fact none of these were true. Second, plaintiff claims, without any supporting evidence, that LOFR's invoices and billing statements were fraudulent. Third, plaintiff asserts that Liddle "falsely testified" at the hearing before the Special Referee. In this regard, plaintiff claims that the January 4, 1990 retainer agreement containing her signature is a forgery, and that Liddle knowingly produced this false document at the hearings before the Special Referee.

It is well-settled New York law that where a fraud claim arises out of the same conduct that forms the basis for a legal malpractice claim, the fraud claim is deemed duplicative of the malpractice claim and must be dismissed. Laruccia v. Forchelli, Curto, Schwartz, Mineo, Carlino Cohn, LLP, 744 N.Y.S.2d 335 (N.Y.App.Div. 2d Dep't 2002); Best v. Law Firm of Queller Fisher, 718 N.Y.S.2d 397 (N.Y.App.Div. 2d Dep't 2000).

Plaintiff's claims regarding Liddle's alleged misrepresentations about the value or expected duration of her case, or about how aggressively he would pursue the case, are the same facts proffered in support of her malpractice claim. This portion of plaintiff's fraud claim is therefore duplicative of her malpractice claim and, under well-established New York law, cannot be sustained.

Plaintiff's remaining fraud claims — i.e., that LOFR's billing statements were fraudulent and that Liddle lied and submitted false documents at the hearings before the Special Referee, must be dismissed for a different reason. For each of these claims, plaintiff has failed to allege an essential element of a cause of action for fraud — justifiable reliance upon a false statement made by defendants.

In order to sustain a fraud cause of action, there must be proof of five essential elements: (i) a material misrepresentation of fact; (ii) made with knowledge of its falsity; (iii) with the intent to deceive; (iv) justifiable reliance and (v) damages. Channel Master Corp. v. Aluminium Ltd. Sales, 151 N.E.2d 833, 835 (N.Y. 1958); Desideri v. D.M.F.R. Group (USA) Co., 660 N.Y.S.2d 714, 716 (N.Y.App.Div. 1st Dep't 1997).

Plaintiff's fraud claims must be dismissed because she has not alleged that she relied upon LOFR's billing statements or anything said or produced by defendants at the Special Referee hearings. To the contrary, at the hearings plaintiff vigorously contested LOFR's fees and expenses and accused Liddle of fraud. As such, plaintiff cannot claim to have relied upon any alleged false statements contained in LOFR's invoices or misstatements made at the hearings. See Lazich v. Vittoria Parker, 592 N.Y.S.2d 418 (N.Y.App.Div. 2d Dep't 1993) ("All the statements and actions complained of were undertaken in the course of adversarial proceedings and were fully controverted. Therefore, the plaintiff cannot and has not asserted the requisite reliance required for fraud.")

Plaintiff's fraud claims are therefore dismissed.

Breach of Contract

Plaintiff claims that by failing to provide her with adequate representation, defendants breached their promise to pursue her case skillfully and vigorously. N.Y.C.P.L.R. § 214(6) provides a statute of limitations of three years for all legal malpractice claims, "regardless of whether the underlying theory is based in contract or tort." Plaintiff's breach of contract claim is based upon the very same facts as her legal malpractice cause of action, and is therefore duplicative of that cause of action. For the reasons stated above, this claim too is barred by the three-year statute of limitations and must therefore be dismissed. Breach of Fiduciary Duty

Plaintiff claims that defendants' agreement to represent her gave rise to a fiduciary relationship, which defendants then breached by failing to provide competent representation.

Under well-established New York law, where a breach of fiduciary duty claim arises out of the same conduct that forms the basis for a legal malpractice claim, and alleges no distinct damages, the breach of fiduciary claim is deemed duplicative of the legal malpractice cause of action and must be dismissed.Sonnenschine v. Giacomo, 744 N.Y.S.2d 396, 398 (N.Y.App.Div. 1st Dep't 2002); Mecca v. Shang, 685 N.Y.S.2d 458, 460 (N.Y.App.Div. 2d Dep't 1999).

Here, plaintiff proffers a single set of facts in support of her breach of fiduciary and legal malpractice claims, alleging that defendants were incompetent and lackadaisical in prosecuting her case. These assertions are just repetitions of the conduct alleged to support plaintiff's legal malpractice claim. Plaintiff's cause of action for breach of fiduciary duty duplicates her legal malpractice claim and is therefore dismissed. Intentional Infliction of Emotional Distress, Defamation, and Breach of Privacy

Plaintiff's claim for intentional infliction of emotional distress is based upon the distress caused to her by defendants' alleged improper handling of her case. The claims for defamation and breach of privacy are based upon plaintiffs allegations that, without her permission, defendants wrongfully publicized her case in the mass media in order to garner publicity for LOFR.

Each of plaintiff's claims for intentional infliction of emotional distress, defamation, and breach of privacy, is subject to a one year statute of limitations. See C.P.L.R. 215(3);Spinale v. Guest, 704 N.Y.S.2d 46, 47 (N.Y.App.Div. 1st Dep't 2000) (defamation); Gallagher v. Directors Guild of America, Inc., 533 N.Y.S.2d 863, 864-65 (N.Y.App.Div. 1st Dep't 1988) (intentional infliction of emotional distress); C.P.L.R. 215(3);Zoll v. Jordache Enters., 01-CV-1339, 2002 U.S. Dist. LEXIS 24570 (S.D.N.Y. December 24, 2002) (right of privacy).

Plaintiff does not allege that any wrongful acts were committed by defendants within one year of the date she filed this action, April 29, 2005. Plaintiff's claims for intentional infliction of emotional distress, defamation, and breach of privacy are barred by the statute of limitations and therefore dismissed.

Section 487 of the New York State Judiciary Law

Plaintiff also asserts a claim under § 487 of the New York State Judiciary Law, which provides:

An attorney or counselor who:
1. Is guilty of any deceit or collusion, or consents to any deceit or collusion, with intent to deceive the court or any party; or,
2. Willfully delays his client's suit with a view to his own gain; or, willfully receives any money or allowance for or on account of any money which he has not laid out, or becomes answerable for, is guilty of a misdemeanor, and in addition to the punishment prescribed therefor by the penal law, he forfeits to the party injured treble damages, to be recovered in a civil action.

Like claims for legal malpractice generally, a claim asserting violation of Judiciary Law § 487 is governed by a three year statute of limitations. Lefkowitz v. Appelbaum, 685 N.Y.S.2d 460, 461 (N.Y.App.Div. 2d Dep't 1999); Kuske v. Gellert Cutler, 667 N.Y.S.2d 955, 955 (N.Y.App.Div. 2d Dep't 1998).

All of the wrongful acts asserted in support of plaintiff's claim under § 487 are alleged to have been committed more than three years prior to the commencement of the present action. The claim is therefore barred by the statute of limitations and is dismissed.


The amended complaint is dismissed with prejudice.