Ben-Zvi v. Kronish Lieb Weiner & Hellman L. L. P.

278 A.D.2d 167, 718 N.Y.S.2d 328, 2000 N.Y. App. Div. LEXIS 13823

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: December 28, 2000
• Status: Published

Opinion

Judgment, Supreme Court, New York County (Barbara Kapnick, J.), entered July 20, 1999, dismissing the complaint for failure to state a cause of action, unanimously affirmed, without costs.

Plaintiffs cause of action for legal malpractice based on defendants’ representation of him in a Federal criminal proceeding is precluded by plaintiffs undisturbed conviction on some of the charges in that proceeding, an obstacle that plaintiff cannot avoid by pleading a purported cause of action for breach of contract alleging that defendants failed to perform their contract to represent him with due care (see, Kaplan v Sachs, 224 AD2d 666, lv dismissed and denied 88 NY2d 952). Plaintiffs cause of action for fraud, based on allegations that defendants billed him for services that either were not performed or were overstated, was properly dismissed for failure to satisfy the specificity requirement of CPLR 3016 (b) (see, Callas v Eisenberg, 192 AD2d 349). Plaintiffs cause of action for negligent infliction of emotional distress was properly dismissed for lack of an allegation that defendants’ conduct unreasonably and directly endangered his physical safety (see, Wolkstein v Morgenstern, 275 AD2d 635, 637). Concur — Rosenberger, J. P., Nardelli, Williams, Mazzarelli and Friedman, JJ.