MEMORANDUM AND ORDER

LORETTA A. PRESKA, United States District Judge

Plaintiff filed this action on November 5, 2001, essentially alleging legal malpractice. On February 6, 2002, defendant moved to dismiss the complaint for lack of subject matter jurisdiction and failure to state a claim pursuant to Federal Rules of Civil Procedure 12(b)(1) and 12(b)(6), respectively, or in the alternative, for summary judgment pursuant to Federal Rule of Civil Procedure 56(c). By Order dated February 11, 2001 ("February 11 Order"), I directed plaintiff to show cause why the action should not be dismissed as time-barred. On February 18, 2002, plaintiff requested a forty-five day extension to respond to the Order, which defendant objected to on February 27, 2002. By Order dated March 8, 2002, I extended plaintiff's time to respond to April 4, 2002. In his papers filed on March 18, 2002, plaintiff responded to the February 11 Order, opposed defendant's motion to dismiss, and moved to amend the complaint. On April 8, 2002, plaintiff moved for an order to stay the instant action in light of an allegedly related Court of Appeals proceeding. On April 24, 2002, defendant filed a surreply, which addressed plaintiff's response to the February 11 Order and plaintiff's motions to amend and to stay. For the reasons set forth below, plaintiff's motions to stay and to amend are denied, and defendant's motion to dismiss is granted.

BACKGROUND

Plaintiff was indicted in two related criminal matters, Nos. 94 Cr. 213 (RWS) and 95 Cr. 321 (RWS) and on April 20, 1995, he pled guilty to: conspiracy to commit securities fraud and mail fraud, conspiracy to obstruct justice, tax evasion, and mail and wire fraud. He sought unsuccessfully to withdraw his plea and was sentenced to a term of incarceration of twenty years, a fine of $1 million, a three-year period of supervised release, and approximately $475 million in restitution.See United States v. Hoffenberg, Nos. 94 Cr. 213 (RWS), 95 Cr. 321 (RWS), 1997 WL 96563, at *1 (S.D.N.Y. Mar. 5, 1997). On September 22, 1998, the Court of Appeals affirmed plaintiff's sentence and conviction.See United States v. Hoffenberg, 164 F.3d 620 (2d Cir. 1998)

In his pro se complaint filed on November 5, 2001, plaintiff appears to assert a claim for legal malpractice against defendant Bodell, who represented him on direct appeal from his criminal conviction in 1997 and 1998. Plaintiff alleges that defendant was retained sometime in March of 1997 to assist him with his direct appeal. (Compl. ¶ 12). Plaintiff further alleges that, from approximately March 1997 to November 1998, defendant engaged in billing fraud and did not research plaintiff's claims or meet with plaintiff to discuss the issues to be raised on direct appeal. (See id. ¶¶ 20-45).

More specifically, plaintiff contends that defendant engaged in malpractice by refusing to amend his appeal as plaintiff requested. Plaintiff attaches, inter alia, four letters to his complaint, which describe the basis for plaintiff's allegations. In a letter to plaintiff dated May 15, 1998, defendant describes how he, defendant, prepared the appellate brief and supporting materials and how plaintiff was involved throughout the process. (Letter from defendant to plaintiff dated May 15, 1998 ("May 15 Ltr."), at 1-2). He further describes how plaintiff had been informed on numerous occasions of the positions that were taken in his appellate brief prior to its filing and that plaintiff had reviewed all of the relevant materials prior to its filing. (Id. at 2). Defendant then states:

In April and May, 1998 you have barraged me with letters and phone calls and threats (as you have done in the past) concerning an argument that you insist be made in the form of an amended brief and appendix which bears on [plaintiff's private trial counsel Hoffmann Pollock's] conduct involving a conflict of interest. I reviewed the documents and wrote to you indicating that I believed your argument to be legally frivolous and gave you the reasons and invited you to write to the court of appeals requesting permission to file a pro se brief.

(Id. at 2). Defendant also wrote:

I view your letters to myself and Dan Meyers [plaintiff's former CJA counsel] as well as your countless telephone threats as coming from a dishonest manipulative and dysfunctional character who is in constant denial of his dishonesty and selfishness and who satisfies his denial by trying to maliciously injure decent and honest people. Your dysfunction has reached the point where you are out of control and making mistakes that you will regret, particularly when you make such baseless and fraudulent assertions about respectable, honest and experienced attorneys. You do this evil work for the sole purpose of trying to besmirch their reputation which you can never accomplish in any form.

(Id. at 1).

Subsequently, by letter dated May 25, 1998, plaintiff referred to "irreconcilable differences" between the parties and requested that defendant withdraw as counsel to allow new counsel to be appointed, who would file a 2255 petition and/or motion "to cure [defendant's] defective appeal." (Letter from plaintiff to defendant dated May 25, 1998 ("May 25 Ltr.")). On June 1, 1998, plaintiff wrote another letter to defendant stating:

I have made serious charges of malpractice against you. Your personal attack on me in your letter dated May 15 . . . indicates that you cannot represent me any longer. . . . I am requesting that you withdraw as my counsel at once. . . . It is my present intention to bring suit against you for your negligent conduct in your representation of me. Therefore, your malpractice carrier should be notified immediately.

(Letter from plaintiff to defendant dated June 1, 1998 ("June 1 Ltr.")). On June 2, 1998, the Law Offices of Adler Ring wrote a letter to defendant on behalf of plaintiff, which stated that plaintiff "is presently preparing pleadings" to pursue a claim for professional negligence against defendant based on his representation of plaintiff in connection with the Second Circuit appeal. (Letter from Bart I. Ring, Esq. to Bodell dated June 2, 1998, at 1 ("June 2 Ltr.")). The letter further stated:

In light of the contents of your letter of May 15, 1998, it appears that the only proper alternative is for you to immediately withdraw as Mr. Hoffenberg's counsel of record in connection with said Appeal so that Mr. Hoffenberg can have new counsel appointed [for] him by the Court. of course, until such time that the Court recognizes your withdrawal as counsel of record for Mr. Hoffenberg, please continue to advise Mr. Hoffenberg of all material developments in connection with his Appeal.

(Id.)

Subsequently, defendant argued plaintiff's appeal, and on September 22, 1998, the Court of Appeals affirmed the conviction. See Hoffenberg, 164 F.3d 620. On October 6, 1998, defendant filed a petition for rehearing and petition for rehearing en banc. Defendant filed a motion to withdraw as counsel on November 18, 1998 based on plaintiff's request, which the Court of Appeals granted on November 25, 1998.

Plaintiff filed his complaint alleging malpractice against defendant in this Court on November 5, 2001, in which he argues that the May 15 letter "demonstrates the mindset of defendant to act with prejudice, fraud, and deceit, and divided loyalty, bad faith [and] impaired professional conduct against prose [sic]. Defendant went forward in court acting for prose [sic] after he filed the above May 15, 1998 letter." (Compl. ¶ 49). Defendant now moves to dismiss the complaint as time-barred, for failure to state a claim, or alternatively, for summary judgment.

DISCUSSION

I. Applicable Legal Standards

When deciding a motion to dismiss under Rule 12(b)(6), I must accept as true all well-pleaded factual allegations of the complaint and draw all inferences in favor of the pleader. See City of Los Angeles v. Preferred Communications, Inc., 476 U.S. 488, 493 (1986); Miree v. DeKalb County, 433 U.S. 25, 27 n. 2 (1977) (referring to "well-pleaded allegations");Mills v. Polar Molecular Corp., 12 F.3d 1170, 1174 (2d Cir. 1993). "[T]he complaint is deemed to include any written instrument attached to it as an exhibit or any statements or documents incorporated in it by reference." Int'l Audiotext Network, Inc. v. Am. Tel. Tel. Co., 62 F.3d 69, 72 (2d Cir. 1995) (quoting Cortec Indus., Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991)). The Court also may consider "matters of which judicial notice may be taken." Leonard T. v. Israel Discount Bank of New York, 199 F.3d 99, 107 (2d Cir. 1999) (citing Allen v. WestPoint-Pepperill, Inc., 945 F.2d 40, 44 (2d Cir. 1991)). In order to avoid dismissal, a plaintiff must do more than plead mere "[c]onclusory allegations or legal conclusions masquerading as factual conclusions." Gebhardt v. Allspect, Inc., 96 F. Supp.2d 331, 333 (S.D.N.Y. 2000) (quoting 2 James Wm. Moore, Moore's Federal Practice ¶ 12.34 [a] [b] (3d ed. 1997)). Dismissal is proper only when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); accord Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994).

Because plaintiff filed this action pro se, I must judge his pleadings by a more lenient standard than that accorded to "formal pleadings drafted by lawyers." Haines v. Kerner, 404 U.S. 519, 520 (1972); Hanlin v. Mitchelson, 794 F.2d 834, 838-39 (2d Cir. 1986) (stating that pro se pleadings are given a liberal construction). Nevertheless, proceeding pro se does not altogether relieve plaintiff from the usual pleading requirements. See Kadosh v. TRW, Inc., No. 91 Civ. 5080, 1994 WL 681763, at *5 (S.D.N.Y. Dec. 5, 1994) (noting that the "work product of pro se litigants should be generously and liberally construed, but [the pro se's] failure to allege either specific facts or particular laws that have been violated, renders his attempt to oppose defendants' motion ineffectual"); Stinson v. Sheriff's Dep't, 499 F. Supp. 259, 262 (S.D.N.Y. 1980) (explaining that the liberal standard accorded to pro se pleadings "is not without limits, and all normal rules of pleading are not absolutely suspended").

II. Plaintiff's Motion to Stay

Plaintiff moves to stay the instant proceeding based on the fact that the Court of Appeals issued a Certificate of Appealability in Hoffenberg v. United States, No. 00-2666, which he describes as a pending 28 U.S.C. § 2255 motion which contains allegations that Hoffman Pollok, his private trial counsel, forced him to plead guilty involuntarily. (See Plaintiff's Motion to Stay at 2). Plaintiff argues that because his allegations in the Court of Appeals proceeding are the same as those in the instant proceeding against Bodell, the current motion should be stayed pending a decision from the Court of Appeals.

A review of the Court of Appeals' docket sheet in Hoffenberg v. United States, No. 00-2666, reveals that plaintiff appealed from an order issued by Judge Sweet which: 1) denied plaintiff's recusal motion filed pursuant to 28 U.S.C. § 144 and 455 based on an alleged conflict of interest; 2) held that a section § 2255 motion, even if filed, would be time-barred. See Hoffenberg v. United States, No. 00 Civ. 1686 (RWS), 2000 WL 1523142 (S.D.N.Y. Oct. 13, 2000). On April 5, 2001, the Court of Appeals granted plaintiff's motion for a certificate of appealability specifically to permit plaintiff to brief the following issues: 1) whether the district court construed or should have construed any of plaintiff's applications as a 2255 petition, and 2) if so, whether such petition was timely filed and whether the recusal motion should have been granted. (See Court of Appeals Docket Sheet for Docket No. 00-2666). In the instant malpractice case, however, plaintiff alleges that defendant failed properly to investigate plaintiff's assertion that Hoffman Pollok forced him to plead guilty. (See, e.g., Plaintiff's Reply and Motion to Amend at 18). The Court of Appeals' forthcoming decision therefore will be unlikely to have any bearing on Bodell's performance on appeal. Accordingly, plaintiff's motion to stay is denied.

III. Statute of Limitations for Legal Malpractice

Under New York law, the statute of limitations for a legal malpractice claim is three years, regardless of whether the claim sounds in tort or in contract. N.Y. C.P.L.R. § 214(6); Uehigashi v. Kanamori, 161 F. Supp.2d 221, 225 (S.D.N.Y. 2001) (citations omitted). A cause of action for legal malpractice accrues when the malpractice is committed, even if it is discovered later. Uehigashi, 161 F. Supp.2d at 225 (citations omitted); Shumsky v. Eisenstein, 726 N.Y.S.2d 365, 367 (Ct. App. 2001).

In the complaint, plaintiff alleges that defendant engaged in malpractice "on or about March 1997 through November 1998." (Compl. ¶ 20). Plaintiff argues that he did in fact file the action within the three year statute of limitations because the Court of Appeals granted defendant's motion to withdraw as counsel on November 25, 1998. (Reply Br. at 7). The determinative date, however, is not when defendant withdrew as counsel, but when the alleged malpractice occurred.Uehigashi, 161 F. Supp.2d at 225. Here, plaintiff alleges that defendant committed malpractice by failing to amend his appeal and by continuing to act for him after writing the May 15 letter. (Compl. ¶ 49). Clearly, defendant submitted the appellate briefs and argued plaintiff's case before the Court of Appeals prior to its decision affirming plaintiff's conviction on September 22, 1998. As such, the alleged malpractice was committed more than three years prior to November 5, 2001. Even when construing plaintiff's complaint and attached documents liberally, the last act that defendant took with regard to plaintiff's appeal was on October 6, 1998, when defendant filed a petition for rehearing and a petition for rehearing en banc. That action still occurred more than three years before plaintiff filed his complaint on November 5, 2001.

Plaintiff argues that the statute of limitations should be tolled here because he was deprived of his right to access the court and his right to due process when he spent "two years [in] solitary isolation that took place in years 1998 through 2001." (Reply Br. at 8). During this time, plaintiff alleges that his legal files were seized and held in storage by prison officials. (Id.). Because he could not access his files, plaintiff argues, the statute of limitations should be tolled. (Id. at 8-12).

Plaintiff, however, cites no case (and research has disclosed no case) holding that solitary confinement or seizure of legal files tolls the statute of limitations in New York. Plaintiff cites to Tellier v. Fields, apparently not for any legal principle discussed but stating that "[t]he same prison official[,] Associate Warden Susan Gerlinski[,] inTellier v. Fields, caused the prison officials to hold [plaintiff] in solitary isolation for some two years." (Pl.'s Reply at 10). In Tellier, plaintiff alleged procedural due process violations related to his 514-day confinement in the Special Housing Unit ("SHU"). There, the Court of Appeals affirmed the district court's denial of defendants' motion to dismiss for failure to state a claim and for summary judgment because factual issues existed regarding the nature of plaintiff's confinement for 514 days in the SHU, specifically as to whether defendants complied with the relevant administrative regulations. 280 F.3d 69, 82-83 (2d Cir. 2000). The Court, however, did not address either the statute of limitations for legal malpractice claims or tolling in such cases.

Plaintiff's citations to Bowen v. City of New York, 476 U.S. 467, andSwietlowich v. County of Bucks, 610 F.2d 1157 (3d Cir. 1979), are similarly misplaced. In Bowen, the Court held "[w]here the Government's secretive conduct prevents plaintiffs from knowing of a violation of rights, statutes of limitations have been tolled until such a time as plaintiffs had a reasonable opportunity to learn the facts concerning the cause of action." Id. at 481. Similarly, the law at issue in Swietlowich provided that the statute of limitations in fraudulent concealment cases does not commence if "the wrongdoer hides from the innocent party the facts which would put him upon inquiry." 610 F.2d at 1162 (citation omitted) (ultimately finding it "obvious that the alteration of records of which the plaintiff was oblivious in no way misled her"). Here, plaintiff has not alleged secretive conduct or concealment that prevented him from discovering defendant's alleged malpractice. In fact, plaintiff began complaining about defendant's services as early as May of 1998. (See, e.g., May 25 Ltr.).

Plaintiff further cites to several cases as "controlling authority that ruled prison officials had to provide prose [sic] meaningful court access [and] due process . . . [which was deprived when plaintiff was] held in solitary isolation for some two years." (Pl.'s Reply at 10-11). It is well settled that a prison inmate retains constitutional rights "that are not inconsistent with his status as a prisoner or with the legitimate penological objectives of the corrections system." Turner v. Safley, 482 U.S. 78, 95 (1987) (citation omitted) (upholding restrictions on inmate-to-inmate correspondence as reasonably related to prison security goals but striking down as constitutionally infirm a regulation that prohibited inmates from marrying absent a decision from prison superintendent). Furthermore, the Constitution requires that prisoners be provided tools to attack their sentences, directly or collaterally, and to challenge the conditions of their confinement. Lewis v. Casey, 518 U.S. 343, 355 (1996) (reversing lower courts' finding that petitioners were deprived of their right to access the courts as a result of inadequate prison legal research facilities). However, "[i]mpairment of any other litigating capacity is simply one of the incidental (and perfectly constitutional) consequences of conviction and incarceration."Id. (emphasis in original) (clarifying the holding of Bounds v. Smith, 430 U.S. 817 (1977)). Moreover, delays that lockdown prisoners routinely experience in receiving legal materials or legal assistance "are not of constitutional significance, even where they result in actual injury," as long as they are "the product of prison regulations reasonably related to legitimate penological interests." Id. at 362. It is not for me to decide whether plaintiff's alleged confinement was legitimate, and none of these cases supports plaintiff's assertion that the statute of limitations should be tolled for his legal malpractice action.

To the extent that plaintiff is arguing that this Court has the discretion to toll the statute of limitations in the interests of avoiding an "unjust result," (Pl.'s Reply at 11), or to comport with federal policy, Johnson v. Railway Express Agency, Inc., 421 U.S. 454, 465 (1975) (cited by plaintiff) ("[C]onsiderations of state law may be displaced where their application would be inconsistent with the federal policy underlying the cause of action under consideration"), I decline to do so. Although ordinarily on a motion pursuant to Rule 12(b)(6) the plaintiff's allegations must be accepted as true and the Court's consideration is limited to the four corners of the complaint, see Int'l Audiotext, 62 F.3d at 72, a Court may take judicial notice of facts that are "not subject to reasonable dispute in that [they are] either (1) generally known within the territorial jurisdiction of the trial court or (2) capable of accurate and ready determination by resort to sources whose accuracy cannot reasonably be questioned." Liberty Mut. Ins. Co. v. Rotches Pork Packers, Inc., 969 F.2d 1384, 1988 (2d Cir. 1992). A Court also "may take judicial notice of a document filed in another court 'not for the truth of the matters asserted in the other litigation, but rather to establish the fact of such litigation and related findings.'"Id. (quoting Kramer v. Time Warner Inc., 937 F.2d 767, 774 (2d Cir. 1991)). Here, the Court's docket reveals that plaintiff filed several other cases in this District in 1999 and 2000, some of which are currently pending, and two of which are legal malpractice claims. See Hoffenberg v. Meyers, No. 99 Civ. 4674 (legal malpractice claim transferred from the Middle District of Pennsylvania on June 28, 1999);100,000 Victim Families Note Holders Owners of Secs. in Towers Fin. Corp. v. Schulte Roth Zabel, No. 99 Civ. 6052 (filed on July 29, 1999); Hoffenberg v. United States, No. 00 Civ. 1686 (filed on March 6, 2000); Hoffenberg v. Hoffman Pollok, No. 00 Civ. 3151 (legal malpractice claim filed on April 25, 2000). Plaintiff's assertion that his alleged legal disability delayed the filing of the instant action and thereby harmed him is belied by his litigation of these cases. Therefore, plaintiff fails to allege facts indicating that his alleged confinement negatively affected his ability to access the courts.

Plaintiff relies on Hardin v. Straub, where the Supreme Court held that the lower federal courts should have applied a Michigan statute that suspended the limitations period for prisoners under disability in a civil rights action, 490 U.S. 536 (1989). Here, however, New York does not have a similar tolling statute in legal malpractice actions that could be applied. Although neither party mentions it, New York does allow for tolling under the "continuous representation" doctrine, which provides that the statute of limitations in legal malpractice actions will be tolled for the period during which the attorney continues to represent the client in a particular matter. Icahn v. Todtman, Nachamie, Spizz Johns, No. 99 CIV 11783 (WHP), 2001 WL 1160582, at *3-4 (S.D.N.Y. Oct. 1, 2001); Gray v. Wallman Kramer, 638 N.Y.S.2d 18, 19 (1st Dep't 1996). To show continuous representation, a plaintiff must demonstrate "(1) ongoing representation in connection with the specific matter from which the malpractice arose and (2) clear indicia of an ongoing, continuous developing and dependent relationship between the client and the attorney." Nobile v. Schwartz, No. 99 Civ. 2375 (RWS), 2000 WL 1753036, at *8 (S.D.N.Y. Nov. 29, 2000) (citations omitted). Here, plaintiff commenced his action on November 5, 2001. For it to be timely, defendant must have represented plaintiff until at least November 5, 1998.

The purpose underlying suspending the statute of limitations during the period of the attorney-client relationship is that "the client has the right to presume the professional's ability and good faith, and realistically cannot be expected to question and assess the techniques employed or the manner in which the services are rendered . . . or to jeopardize his pending case or his relationship with the attorney handling that case." Icahn, 2001 WL 1160582, at *3 (quoting Glamm v. Allen, 453 N.Y.S.2d 674, 678 (1982)). As a result, the tolling ends when a client loses trust and confidence in his attorney. Id.; see also Aaron v. Roemer, Wallens Mineaux, LLP, 707 N.Y.S.2d 711, 714 (3d Dep't 2000) (stating that "the rule ceases to operate when these considerations no longer prevail").

Although the question of continuous representation is usually for the trier of fact, Icahn, 2001 WL 1160582, at *3, I find that, on the basis of plaintiff's complaint and the attached documents, plaintiff can prove no set of facts to support application of the continuous representation doctrine. If a suit is filed after the limitations period, it is plaintiff's burden to establish that the statute has been tolled.Swietlowich, 610 F.2d at 1162. In his letter to defendant dated May 25, 1998, plaintiff refers to "irreconcilable differences" and defendant's "defective appeal," and requests that defendant withdraw as counsel. (See May 25 Ltr.). In his letter of June 1, 1998 to defendant, plaintiff again requests that defendant withdraw as counsel and explicitly states that he made "serious charges of malpractice" and intended to bring suit against defendant for his "negligent conduct." (See June 1 Ltr.). On June 2, 1998, Adler Rind wrote to defendant on behalf of plaintiff to state that plaintiff was in the process of preparing pleadings to pursue a professional negligence claim and demanding that defendant "immediately withdraw as Mr. Hoffenberg's counsel of record." (See June 2 Ltr.). Because trust and confidence is a prerequisite to the rule's application, plaintiff has not and, based on the documents attached to the complaint, cannot show that the continuous representation doctrine applied later than June 2, 1998. DeCarlo v. Ratner, 204 F. Supp.2d 630, 636 (S.D.N.Y. 2002); Aaron, 707 N.Y.S.2d at 714.

Defendant's subsequent argument before the Court of Appeals, filing of a petition for rehearing, and withdrawal on November 25, 1998, do not alter this result. In Aaron v. Roemer, plaintiff argued that the statute of limitations should be extended until November 17, 1995, the date on which defendant was formally permitted to withdraw. 707 N.Y.S.2d at 714. Moreover, defendant had signed a stipulation on November 15, 1995 identifying himself as plaintiff's attorney and at that point, plaintiff was not yet represented by another attorney. Id. Plaintiff, however, had written a letter on November 8, 1995 to the district court indicating that his relationship with his attorneys was "irretrievably broken," which the court found controlling. It specifically noted:

In these special circumstances, where the attorney promptly moves to withdraw and the client acknowledges in writing an irreparable deterioration of the attorney-client relationship, we conclude that the relationship necessary to invoke the continuous treatment rule did not persist until formal termination of the nominal representation by defendants, but rather ceased with the disruption of the client's trust and reliance prior to November 8, 1995.

Accordingly, because plaintiff did not file this action within the three-year statute of limitations and can prove no set of facts showing that it should be tolled, defendant's motion to dismiss is granted on the ground that plaintiff's complaint is time-barred.

IV. Failure to State a Claim

Plaintiff filed a strikingly similar legal malpractice action in this District against Daniel Meyers, his CJA counsel prior to Bodell, which Judge Sweet dismissed as barred by state law. See Hoffenberg v. Meyers, No. 99 Civ. 4674, 2002 WL 57252 (S.D.N.Y. 2002). In that case, plaintiff argued that Meyers failed to achieve a withdrawal of plaintiff's guilty plea, failed to understand complex financial issues related to his case, and did not take notice of an alleged conflict of interest involving Hoffman Pollock, his private trial counsel, and Alan Cohen, a former bankruptcy trustee of Towers Financial Corporation. See id. at *3.

To state a claim for legal malpractice, plaintiff must show "that an attorney-client relationship existed, that a duty was owed, that there was a wrongful act or omission which was the proximate cause of the damages, and the measure of those damages." Id. (citations omitted). Moreover, "to state a cause of action for legal malpractice arising from negligent representation in a criminal proceeding, plaintiff must allege his innocence or a colorable claim of innocence of the underlying offense." Carmel v. Lunney, 70 N.Y.2d 169, 173 (Ct.App. 1987) (citingClaudio v. Heller, 119 Misc.2d 432 (N.Y.Sup. 1983)). If he cannot do so, "public policy prevents maintenance of a malpractice action against his attorney." Id. at 174.

Plaintiff fails to allege his innocence here. As Judge Sweet explained, plaintiff voluntarily pled guilty, the Court of Appeals affirmed his conviction and sentence, and his plea remains undisturbed.Hoffenberg v. Meyers, 2202 WL 57252, at *3, In addition, the proximate cause of plaintiff's damages was his plea, not defendant's representation. Id. at 4. Moreover, plaintiff attaches an "Attorney Affirmation" of R. Lawrence Barbuto to his Complaint, presumably to satisfy the requirement that he provide expert evidence that defendant failed to meet the applicable standard of care that plaintiff was owed.See Greene v. Payne, Wood Littlejohn, 602 N.Y.S.2d 883, 885 (2d Dep't 1993) (stating that expert testimony is necessary to show that the attorney breached a standard of professional conduct and skill, unless the ordinary experience of the fact-finder is sufficient to judge the adequacy of representation, or the attorney's conduct falls below any standard of due care). Nothing in the record suggests, however, that Barbuto qualifies as an expert and in any event, his affirmation fails to state that defendant fell below a standard of care. As Judge Sweet concluded, "it appears that Hoffenberg has simply repackaged prior unsuccessful arguments in effort to avoid the consequence of his plea."Hoffenberg v. Meyers, 2202 WL 57252, at *4.

Accordingly, defendant's motion to dismiss for failure to state a claim is granted.

V. Plaintiff's Motion to Amend

Finally, plaintiff moves to amend the complaint under Federal Rule of Civil Procedure 15 "with authority from the Second Circuit allowing a Prose litigant's wider ability to litigate . . . to meet the Standard under S.E.C. v. Monarch Funding Corp. . . . Wherein further allegations with evidentiary support exhibits may assist the court in weighing the wrongful pattern of deception by defendant Bodell." (Pl.'s Reply at 27).

In S.E.C. v. Monarch Funding Corp., the Court of Appeals addressed an issue of first impression, namely, "whether findings made in a criminal sentencing proceeding may preclude relitigation of an issue in a subsequent civil case." 192 F.3d 295, 298 (2d Cir. 1999). The Court did not foreclose application of the collateral estoppel doctrine in all sentencing cases, but cautioned that it only should be applied in circumstances where it is "clearly fair and efficient to do so," and concluded that "precluding relitigation on the basis of such findings should be presumed improper." Id. at 306.

S.E.C. v. Monarch has no bearing on this case. Plaintiff has not referred to any findings of fact at his sentencing that are now being used to preclude relitigation, or that have any relevancy to the instant legal malpractice action against defendant. Although leave to amend is freely given, particularly to offer pro se litigants the chance to state a valid claim, I find that it would be futile in this case. See Dluhos v. The Floating and Abandoned Vessel, 162 F.3d 63, 69 (2d Cir. 1998) (citing Satchell v. Dilworth, 745 F.2d 781, 785 (2d Cir. 1984); Foman v. Davis, 371 U.S. 178, 182 (1962).

Accordingly, plaintiff's motion to amend is denied.

CONCLUSION

For the foregoing reasons, plaintiff's motions to stay and to amend are denied and defendant's motion to dismiss is granted.

The Clerk of the Court shall mark this action closed and all pending motions denied as moot.

SO ORDERED.