Unger v. Paul Weiss Rifkind Wharton & Garrison

265 A.D.2d 156, 696 N.Y.S.2d 36, 1999 N.Y. App. Div. LEXIS 9731

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: October 5, 1999
• Status: Published

Opinion

—Order, Supreme Court, New York County (Louise Gruner Gans, J.), entered April 10, 1998, which granted defendants’ motions to dismiss the complaint for failure to state a cause of action, unanimously affirmed, without costs.

The complaint was properly dismissed as against defendant law firm since an attorney’s failure to disclose a conflict of interest is not actionable absent allegations that such failure proximately caused actual damages (see, Prince v Dembitzer, 193 AD2d 494, 495). It cannot be inferred from the complaint that plaintiff would have prevailed in the underlying litigation, or saved any expense compensable in malpractice or fraud, had the firm disclosed the alleged conflict (compare, Sage Realty Corp. v Proskauer Rose, 251 AD2d 35, 36). Nor does plaintiff’s positing of several alternative courses that the firm might have successfully pursued in the underlying litigation allege any other conduct falling below any other standard of the profession (see, Bernstein v Oppenheim & Co., 160 AD2d 428, 431). As against the other defendant, which allegedly induced the law firm’s withdrawal from the underlying litigation by retaining the firm to do legal work on behalf of its subsidiary, plaintiff’s opponent in the underlying litigation, plaintiff’s cause of action for tortious interference with contract was properly dismissed on the basis of documentary evidence demonstrating that the firm’s representation of the subsidiary predated its representation of plaintiff, and that such prior representation justified defendant’s actions in making the firm aware of a possible conflict and demanding its withdrawal from the underlying litigation (see, Foster v Churchill, 87 NY2d 744, 750-751; Tekni-Plex, Inc. v Meyner & Landis, 89 NY2d 123, 130-131). We have considered plaintiff’s other arguments and find them to be without merit. Concur — Sullivan, J. P., Williams, Wallach, Lerner and Friedman, JJ.