Mountain Lion Baseball, Inc. v. Gaiman

263 A.D.2d 636, 693 N.Y.S.2d 289, 1999 N.Y. App. Div. LEXIS 7842
CourtAppellate Division of the Supreme Court of the State of New York
DecidedJuly 8, 1999
StatusPublished
Cited by8 cases

This text of 263 A.D.2d 636 (Mountain Lion Baseball, Inc. v. Gaiman) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Mountain Lion Baseball, Inc. v. Gaiman, 263 A.D.2d 636, 693 N.Y.S.2d 289, 1999 N.Y. App. Div. LEXIS 7842 (N.Y. Ct. App. 1999).

Opinion

Crew III, J.

Appeal from an order of the Supreme Court (Keegan, J.), entered June 29, 1998 in Sullivan County, which, inter alia, granted defendants’ motion for summary judgment dismissing the complaint.

In February 1995, plaintiff allegedly entered into an oral agreement with WRD Associates, pursuant to the terms of which WRD was to convey to plaintiff certain real property located in the Town of Fallsburg, Sullivan County, with the understanding that plaintiff would construct a minor league baseball stadium upon such parcel. In conjunction therewith William Resnick, one of WRD’s partners, contacted defendant Robert Gaiman, an attorney and partner in defendant Green-berg and Gaiman LLP, and asked Gaiman to review the local zoning laws and determine whether construction of the baseball stadium on the property in question was permissible. To that end, Gaiman advised plaintiffs general manager that he had been retained to represent plaintiff and its sole shareholder, Edward Acton, in regard to obtaining the special use permit needed for the construction of the stadium. Gaiman thereafter appeared before the Town of Fallsburg Planning Board on various occasions in April 1995 and May 1995 and, following the issuance of the special use permit, continued to represent plaintiffs interests with respect to the CPLR article 78 proceeding commenced by adjoining landowners to challenge the Planning Board’s determination.

Difficulties thereafter developed between Resnick and Acton, prompting Resnick to ask Gaiman to intervene and enter into negotiations with Acton to resolve the underlying dispute. As Gaiman’s prior representation of Acton posed a clear conflict of interest, Gaiman drafted a letter outlining the conflict and, further, seeking permission from plaintiff and Resnick to continue to represent plaintiff in the CPLR article 78 proceeding while representing Resnick in negotiations with Acton relative to the transfer of the baseball stadium. Both Resnick and Acton signed the August 14, 1995 letter acknowledging the conflict and consenting to the representation. Gaiman thereafter prepared, for Resnick’s signature, a letter detailing and formalizing the financial arrangements that had been agreed [637]*637to by Resnick and Acton. Although both Acton and Resnick signed the agreement, further difficulties ensued, resulting in the commencement of various related actions.

In December 1997, plaintiff commenced this action against defendants setting forth seven causes of action sounding in breach of fiduciary duty, legal malpractice, conflict of interest, false representation, intentional interference with contractual relations, prima facie tort and conspiracy. Following joinder of issue, defendants moved for summary judgment dismissing the complaint and plaintiff cross-moved to, inter alia, compel defendants to comply with certain discovery demands. Supreme Court granted defendants’ motion for summary judgment dismissing the complaint in its entirety, prompting this appeal by plaintiff.

We affirm. Plaintiffs first three causes of action allege that defendants breached their fiduciary duty and committed legal malpractice by disclosing confidential information to Resnick, WRD and the Sullivan County Industrial Development Agency and, further, violated the Code of Professional Responsibility by creating and perpetuating a conflict of interest between plaintiff and Resnick/WRD. Our review of the record reveals that such claims are entirely without merit.

As to plaintiffs breach of fiduciary duty and legal malpractice claims, plaintiff alleges that it retained defendants in February 1995 to assist it in developing, financing and constructing the baseball stadium and that defendants thereafter disclosed confidential information obtained during the course of such representation to various individuals. In support of defendants’ motion for summary judgment, Caiman submitted an affidavit wherein he averred, among other things, that he was not retained to represent plaintiff until March 31, 1995 and then only in connection with issues before the' Planning Board. Additionally, Caiman averred that prior to August 14, 1995, when he agreed to intervene in the dispute between Acton and Resnick, he was not privy to any of the details surrounding the construction, operation or financing of the baseball stadium. In opposition, plaintiff offered absolutely nothing to substantiate its conclusory assertions to the contrary. Notably absent from the record is any documentation to support plaintiffs claim that defendants were retained to represent plaintiff in February 1995 with respect to the construction of the baseball stadium; indeed, defendant’s billing records fully support Caiman’s contentions regarding the timing and scope of defendants’ representation. Nor does the record disclose the confidential information allegedly divulged by [638]*638defendants. With respect to plaintiffs conflict of interest claim, it is clear from the record that no conflict existed prior to August 1995, at which time defendants made full disclosure of the conflict and obtained consent from Acton and Resnick to continue to represent plaintiff and WRD in their respective capacities. Accordingly, Supreme Court properly dismissed the "first three causes of action.

We reach a similar conclusion with respect to plaintiffs fourth cause of action for false representation, wherein plaintiff sweepingly alleges that defendants “made representations to [pjlaintiff which were knowingly false and/or were made with reckless disregard to the truth, with the intention of causing [p]laintiff to rely thereupon to its detriment”. It is well settled that “where fraud or misrepresentation is charged, CPLR 3016 (b) requires that the misrepresentation must be pleaded in detail so as to clearly inform the defendant with respect to the incident complained of and give notice of the allegations the plaintiff intends to prove” (Fort Ann Cent. School Dist. v Hogan, 206 AD2d 723, 724). In our view plaintiffs complaint, which fails to set forth the substance of, the dates upon which or the persons to whom the alleged misrepresentations purportedly were made, falls far short of satisfying the pleading requirement imposed by CPLR 3016 (b).

Plaintiffs fifth and sixth

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Maxam v. Kucharczyk
138 A.D.3d 1268 (Appellate Division of the Supreme Court of New York, 2016)
DeNatale v. Santangelo
65 A.D.3d 1006 (Appellate Division of the Supreme Court of New York, 2009)
LMK Psychological Services, P.C. v. Liberty Mutual Insurance
30 A.D.3d 727 (Appellate Division of the Supreme Court of New York, 2006)
De Ruzzio v. De Ruzzio
287 A.D.2d 896 (Appellate Division of the Supreme Court of New York, 2001)
Chevy Chase, F.S.B. v. Sarsfield
278 A.D.2d 773 (Appellate Division of the Supreme Court of New York, 2000)
First Deposit National Bank v. Van Allen
277 A.D.2d 858 (Appellate Division of the Supreme Court of New York, 2000)
Chevy Chase, F.S.B. v. Lane
277 A.D.2d 545 (Appellate Division of the Supreme Court of New York, 2000)
Providian National Bank v. Forrester
277 A.D.2d 582 (Appellate Division of the Supreme Court of New York, 2000)

Cite This Page — Counsel Stack

Bluebook (online)
263 A.D.2d 636, 693 N.Y.S.2d 289, 1999 N.Y. App. Div. LEXIS 7842, Counsel Stack Legal Research, https://law.counselstack.com/opinion/mountain-lion-baseball-inc-v-gaiman-nyappdiv-1999.