OPINION

ROBERT W. SWEET, U.S. District Judge.

Defendant Daniel Meyers ("Meyers") has moved under Rule 56 of the Federal Rules of Civil Procedure for summary judgment to dismiss the amended complaint of pro se plaintiff Steven Jude Hoffenberg ("Hoffenberg"). For the reasons set forth below the motion is granted.

Facts and Prior Proceedings

Hoffenberg was indicted in two related criminal matters, Nos. 94 Cr. 213 (RWS) and 95 Cr. 321 (RWS), assigned to this Court and, on April 20, 1995, pled guilty to the following offenses: conspiracy to commit securities fraud, in violation of 18 U.S.C. § 371; mail fraud, in violation of 18 U.S.C. § 1341, 1342; conspiracy to obstruct justice, in violation of 8 U.S.C. § 371; tax evasion, in violation of 26 U.S.C. § 7201; and mail and wire fraud, in violation of 18 U.S.C. § 1341 and 1342. He sought unsuccessfully to withdraw his plea and was sentenced to a term of incarceration of twenty years, was fined $1 million, and is subject to a three-year period of supervised release upon his release from federal custody and restitution in the amount of approximately $478 million. The Court of Appeals affirmed the sentence and conviction on September 22, 1998. See United States v. Hoffenberg, 164 F.3d 620 (2d Cir. 1998).

Hoffenberg commenced the instant action in the United States District Court for the Middle District of Pennsylvania against his attorney Meyers, who represented Hoffenberg from April 1996 to March 1997 as a court-appointed attorney under the Criminal Justice Act after Hoffenberg's plea and in connection with his sentence. The action was transferred to this Court on June 28, 1999.

By order and judgment dated June 28, 1999, Chief Judge Griesa dismissed Hoffenberg's complaint for lack of subject matter jurisdiction. By mandate dated November 15, 2000, the Second Circuit ordered that the district court judgment be vacated and the action remanded "to permit Appellant to file an amended complaint, setting forth facts sufficient to establish diversity of citizenship, as required by 28 U.S.C. § 1332." An amended complaint was received by the Pro Se Office on December 12, 2000. By order dated December 22, 2000, the earlier order of dismissal was vacated, and the Clerk of the Court was ordered to reassign the action.

The amended complaint, alleging diversity jurisdiction based upon an alleged Arkansas citizenship, sets forth four causes of action against Meyers. The first cause of action alleges gross negligence and malpractice, the second alleges gross negligence, the third damages, and the fourth punitive damages.

In addition to this action, Hoffenberg has brought several other actions: Hoffenberg v. Hoffman Pollok, No. 00 Civ. 3151 (RWS) (S.D.N.Y.) (legal malpractice action against counsel preceding Meyers, dismissed by order of November 19, 2001); Hoffenberg v. United States, 00 Civ. 1686 (RWS) (S.D.N.Y.) (motion to vacate the criminal judgment, dismissed by decision of October 17, 2000); and 100,000 Victim Families Note Holders Owners of Securities in Towers Financial Corp. et al. v. Schulte Roth Zable, No. 99 Civ. 6042 (RMB), 2001 WL 51529 (S.D.N.Y.) (dismissed by decision of May 14, 2001). During the course of the final case mentioned, Magistrate Judge Douglas F. Eaton, in his January 20, 2000 report and recommendation to the Honorable Richard M. Berman, recommended:

that the Court issue an injunction enjoining Hoffenberg from filing or continuing any lawsuit (in any court, state or federal) against any of the bondholders of Towers Financial Corp., or their attorneys or their employees — except that he may request our Court for permission to file or continue such a lawsuit if he can show that he has good-faith reasons to sue about conduct committed after 10/31/99; I also recommend that the Court issue an injunction enjoining Hoffenberg from asking any court to reopen any of the judgments concerning Hoffenberg or Towers Financial Corp. if the judgment in question became final prior to 1999. If the Court does issue such injunctions, I recommend that it send a copy to the Bureau of Prisons; Objections to R and R due by 2/18/00.

The instant motion was filed on June 5, 2001. Hoffenberg sought extensions of time to reply, which were granted. On August 15, 2001, an order was entered directing the filing of Hoffenberg's opposition by September 19, 2001 and the submission of Meyers' reply on or before October 3, 2001. On November 19, 2001, the Pro Se Office received opposition papers from Hoffenberg alleging affirmative malpractice by Meyers and his failure to challenge prior judgments of $450,000 to Hoffman Pollack.

Discussion

Summary Judgment Standard

Rule 56(c) of the Federal Rules of Civil Procedure provides that a motion for summary judgment may be granted when "there is no genuine issue as to any material fact and . . . the moving party is entitled to a judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). Generally, "all ambiguities and inferences to be drawn from the underlying facts should be resolved in favor of the party opposing the motion, and all doubts as to the existence of a genuine issue for trial should be resolved against the moving party." Brady v. Town of Colchester, 863 F.2d 205, 210 (2d Cir. 1988) (citing Celotex Corp. v. Catrett, 477 U.S. 317, 330, n. 2, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); see also Burrell v. City Univ., 894 F. Supp. 750, 757-58 (S.D.N.Y. 1995) (citing cases). The burden rests on the moving party to demonstrate the absence of a genuine issue of material fact. See Goenaga v. March of Dimes Birth Defects Found., 51 F.3d 14, 18 (2d Cir. 1995).

However, the moving party does not bear the burden of proving that the nonmovant's case is wholly frivolous. See Brady, 863 F.2d at 210 (citing Celotex, 477 U.S. at 323-26). Rather, "in cases where the nonmovant will bear the ultimate burden of proof at trial on an issue, the moving party's burden under Rule 56 will be satisfied if he can point to an absence of evidence to support an essential element of the nonmoving party's claim. Thus, the evidentiary burdens that the respective parties will bear at trial guide district courts in their determination of summary judgment motions." Brady, 863 F.2d at 210-11. If, when viewing the evidence produced in the light most favorable to the nonmovant, there is no genuine issue of material fact, then the entry of summary judgment is appropriate. See Burrell, 894 F. Supp. at 758 (citing Binder v. Long Island Lighting Co., 933 F.2d 187, 191 (2d Cir. 1991)).

The Malpractice Cause of Action is Barred by State Law

Hoffenberg's first claim against Meyers appears to assert malpractice from the failure of Meyers to achieve a withdrawal of Hoffenberg's guilty plea, which was undertaken prior to Meyers' representation. Hoffenberg argues that Meyers failed to adequately understand complex financial issues pertinent to Hoffenberg's defense and, specifically, did not take notice of an alleged conflict of interest that may have been created in bankruptcy proceedings involving Hoffman Pollock, Hoffenberg's counsel at the time he entered his guilty plea, and Alan Cohen, a former Chapter 11 Bankruptcy Trustee of Towers Financial Corporation. Meyers argues that summary judgment should be granted since there are no genuine triable issues of fact.

In order to establish a claim for professional malpractice, a plaintiff has the burden of demonstrating 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. See N.A. Kerson Co. v. Shayne, Dachs, Weiss, Kolbrenner, Levy Levine, 45 N.Y.2d 730, 408 N.Y.S.2d 475 (1978), affirming concurring opinion from 59 A.D.2d 551, 397 N.Y.S.2d 142 (2d Dept. 1977); Marshall v. Nacht, 172 A.D.2d 727, 728, 569 N.Y.S.2d 113 (2d Dept. 1991); Logalbo v. Plishkin, Rubano Baum, 163 A.D.2d 511, 513, 558 N.Y.S.2d 185 (2d Dept. 1990).

In addition, it is well-settled that in a legal malpractice claim arising out of a criminal proceeding, the plaintiff must "allege his innocence or a colorable claim of innocence of the underlying offense (see Claudio v. Heller, 119 Misc.2d 432, 463 N.Y.S.2d 155)." Carmel v. Lunney, 70 N.Y.2d 169, 173, 511 N.E.2d 1126, 518 N.Y.S.2d 605 (1987); see also S.T. Grand, Inc. v. City of New York, 32 N.Y.2d 300, 298 N.E.2d 105, 344 N.Y.S.2d 938 (1973) reh'g denied, 33 N.Y.2d 658 (1973); In re Nassau Ins. Co., 78 N.Y.2d 888, 577 N.E.2d 1039, 573 N.Y.S.2d 447 (1991); Vavolizza v. Krieger, 33 N.Y.2d 351, 308 N.E.2d 439, 352 N.Y.S.2d 919 (1974). If the plaintiff, by virtue of an undisturbed criminal conviction, cannot assert his innocence, public policy prevents a malpractice action against his attorney. B.K. Indus., Inc. v. Pinks, 143 A.D.2d 963, 533 N.Y.S.2d 595 (2d Dept. 1988) citing Carmel, 70 N.Y.2d at 173 ("This is so because criminal prosecutions involve constitutional and procedural safeguards designed to maintain the integrity of the judicial system and to protect criminal defendants from overreaching governmental actions. These aspects of criminal proceedings make criminal malpractice cases unique. . . .").

Hoffenberg voluntarily pled guilty before this Court. He appealed his conviction and sentence to the Second Circuit, which affirmed the conviction and sentence. His conviction and sentence upon his plea remain undisturbed. Consequently, Hoffenberg cannot assert his innocence in furtherance of a malpractice action against his attorney. See Carmel, 70 N.Y.2d at 173 ("[B]ecause plaintiff's conviction by plea . . . has not been successfully challenged, he can neither assert, nor establish, his innocence.").

Further, the proximate cause for Hoffenberg's damages, i.e., his sentence, was not the result of Meyers' representation but rather his plea. This Court has already stated that Hoffenberg's statements at the plea proceedings demonstrated that he fully understood the charges to which he was pleading guilty. See United States v. Hoffenberg, 169 F.R.D. 267, 274-275 (S.D.N Y 1996). Although various acts or omissions by Meyers are alleged to be negligent in connection with the failure to achieve a withdrawal of the plea, it cannot be said that these deficiencies, even if established, caused the damages incurred by Hoffenberg. See Carmel, 70 N.Y.2d at 173; Mapeso v. Burstein Fass, 257 A.D.2d 476, 684 N.Y.S.2d 201 (1999).

Finally, it must be recognized that Hoffenberg has failed to provide any expert evidence or affidavit that Meyers failed to meet the applicable standard of care owed to him as a client. It is well-settled under New York law that in order to demonstrate negligence in a legal malpractice claim, "unless the ordinary experience of the fact-finder provides sufficient basis for judging the adequacy of the professional service . . ., or the attorney's conduct falls below any standard of due care . . ., expert testimony will be necessary to establish that the attorney breached a standard of professional care and skill. . . ." Greene v. Payne, Wood Littlejohn, 197 A.D.2d 664, 666, 602 N.Y.S.2d 883, 885 (2d Dep't 1993); see also Clanton v. Vagianellis, 192 A.D.2d 943, 944, 596 N.Y.S.2d 593, 595 (3d Dep't 1993) (plaintiff must submit expert testimony "attesting to the standard of professional care and skill that defendant allegedly failed to meet"). Here, Hoffenberg has made nothing more than conclusory allegations regarding Meyers' alleged deficiencies in understanding the complex financial implications of his case and the alleged conflicts that he claims arose out of the bankruptcy proceedings to which he was a party. In the final analysis, it appears that Hoffenberg has simply repackaged prior unsuccessful arguments in effort to avoid the consequence of his plea.

The Second, Third and Fourth Causes Fail to State a Claim

Count II of the amended complaint alleges a cause of action for gross negligence which arises from the exact same set of alleged facts upon which Hoffenberg bases his claim for negligence and legal malpractice. As such, the second cause of action is merely a redundant pleading of the negligence cause of action and must, therefore, be dismissed. Senise v. Mackasek, 227 A.D.2d 184, 642 N.Y.S.2d 241 (1st Dept. 1996); Mecca v. Shang, 258 A.D.2d 569, 685 N.Y.S.2d 458 (2d Dept. 1999), appeal dismissed, 95 N.Y.2d 791 (2000).

As to the third and fourth causes of action, the courts of the State of New York do not permit an independent cause of action for damages or punitive damages. Friar v. Vanguard Holding Corp., 78 A.D.2d 83, 434 N.Y.S.2d 698 (2d Dept. 1980); Schwed v. Turoff, 73 A.D.2d 615, 422 N.Y.S.2d 134 (2d Dept. 1979); M.S.R. Assoc. v. Consol. Mut. Ins. Co., 58 A.D.2d 858, 396 N.Y.S.2d 684 (2d Dept. 1977).

Conclusion

For the aforementioned reasons, Meyers' motion for summary judgment dismissing Hoffenberg's amended complaint is granted.

It is so ordered.