Cosentino v. Sullivan Papain Block McGrath & Cannavo, P.C.

Appellate Division of the Supreme Court of New York

Cosentino v. Sullivan Papain Block McGrath & Cannavo, P.C.

47 A.D.3d 599, 849 N.Y.S.2d 436

Appellate Division of the Supreme Court of the State of New York·Decided January 31, 2008·Published·Cited by 1 cases

Opinion

Order, Supreme Court, New York County (Edward H. Lehner, J.), entered June 26, 2006, which, in an action for legal malpractice, denied plaintiffs motion to amend the complaint to add a cause of action for breach of fiduciary duty, unanimously affirmed, without costs.

The proposed fiduciary breach claim lacks merit in that it fails to allege facts, rather than conclusions, to support the element of “but for” causation (see Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271-272 [2004]), and was therefore properly rejected (see Thompson v Cooper, 24 AD3d 203, 205 [2005]) even if, arguendo, the alleged conduct involved ethical violations (see Schwartz v Olshan Grundman Frome & Rosenzweig, 302 AD2d 193, 199 [2003]). The damages sought are speculative or otherwise not recoverable (see Postel v Jaffe & Segal, 237 AD2d 127 [1997]). In view of the foregoing, it is unnecessary to address the timeliness of the proposed claim. We have considered plaintiffs other contentions and find them unavailing. Concur—Andrias, J.E, Nardelli, Williams, Catterson and Moskowitz, JJ.

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Order, Supreme Court, New York County (Edward H. Lehner, J.), entered June 26, 2006, which, in an action for legal malpractice, denied plaintiffs motion to amend the complaint to add a cause of action for breach of fiduciary duty, unanimously affirmed, without costs.

The proposed fiduciary breach claim lacks merit in that it fails to allege facts, rather than conclusions, to support the element of “but for” causation (see Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271-272 [2004]), and was therefore properly rejected (see Thompson v Cooper, 24 AD3d 203, 205 [2005]) even if, arguendo, the alleged conduct involved ethical violations (see Schwartz v Olshan Grundman Frome & Rosenzweig, 302 AD2d 193, 199 [2003]). The damages sought are speculative or otherwise not recoverable (see Postel v Jaffe & Segal, 237 AD2d 127 [1997]). In view of the foregoing, it is unnecessary to address the timeliness of the proposed claim. We have considered plaintiffs other contentions and find them unavailing. Concur—Andrias, J.E, Nardelli, Williams, Catterson and Moskowitz, JJ.

Cosentino v. Sullivan Papain Block McGrath & Cannavo, P.C., 47 A.D.3d 599, 849 N.Y.S.2d 436 (N.Y. Ct. App. 2008).

Pincite

47 A.D.3d 599 (Cosentino v. Sullivan Papain Block McGrath & Cannavo, P.C.) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

Opinion

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