Opinion
18-CV-11245 (PGG) (OTW)
02-05-2024
LUISA CASTAGNA ESPOSITO, Plaintiff, v. WILLIE GARY, et al., Defendants.
REPORT & RECOMMENDATION TO THE HONORABLE PAUL G. GARDEPHE
ONA T. WANG, United States Magistrate Judge
I. INTRODUCTION
The Court assumes familiarity with the underlying facts, which were summarized in my previous April 20, 2020, Report and Recommendation (ECF 49) (hereinafter “2020 R&R”). Plaintiff Luisa Castagna Esposito (“Plaintiff”), again proceeding pro se, sues her former attorneys Willie E. Gary (“Gary”) and Christopher Chestnut (“Chestnut”), because they did not win her case. Her claims arise out of Defendants' representation of Plaintiff as a victim in a 2008 sexual assault and battery civil case brought in New York State Supreme Court (the “2008 Tort Case”). (ECF 8 ¶ 1). That case was dismissed in 2015 and in her Second Amended Complaint (“SAC”) (ECF 92), Plaintiff now brings seven “causes of action” against her former counsel, six sounding in legal malpractice; and one claim for negligent misrepresentation. (See SAC at 2029). Before the Court now are Defendants' Motion to Dismiss. (ECF 107).
For the following reasons, I recommend that Defendants' motion be GRANTED and the case be DISMISSED in its entirety.
II. FACTUAL AND PROCEDURAL BACKGROUND
After Plaintiff was injured in a car accident in 2002, she retained the law firm of Pollack, Pollack, Isaac & DiCicco, LLP (“Pollack”), in 2005 to litigate her personal injury case arising out of that accident. (ECF 24-5 at 3; see also 2020 R&R at 2). As that case neared trial, a partner at Pollack, Brian Isaac, put Plaintiff in contact with his father, Allen H. Isaac (“Isaac”), to work as trial counsel. Id. While preparing for trial, Plaintiff met with Isaac several times in 2005. Id. She alleges that Isaac harassed and sexually assaulted her during two meetings in his office. (ECF 8 ¶¶ 17-23). Although Plaintiff made multiple reports to law enforcement and regulatory and oversight bodies about Isaac's sexual assault and harassment, and filed multiple state and federal lawsuits against him and his firm, Isaac was never arrested or criminally prosecuted. See 2020 R&R at 2.
Plaintiff has previously filed, in this Court, a complaint under 42 U.S.C. § 1983 and state law, asserting that various state agencies engaged in a conspiracy to violate her rights by ignoring her claims that Isaac sexually assaulted and harassed her. The Court dismissed Plaintiff's complaint on various jurisdictional grounds. See Esposito v. State of New York, No. 07-CV-11612 (SAS), 2008 WL 3523910, at *122-23 (S.D.N.Y. Aug. 8, 2008), aff'd, 355 Fed. App'x 511 (2d Cir. 2009). The Court has also denied Plaintiff's subsequent motions seeking reconsideration and to reopen the case. See Esposito v. State of New York, No. 07-CV-11612 (SAS), 2008 WL 9419363 (S.D.N.Y. Aug. 28, 2008); Esposito v. State of New York, No. 07-CV-11612 (SAS), 2010 WL 4261396, aff'd, 453 Fed. App'x 37 (2d Cir. 2011); Esposito v. State of New York, No. 07-CV-11612 (SAS), 2012 WL 5499882 (S.D.N.Y. Nov. 13, 2012); Esposito v. State of New York, No. 07-CV-11612 (DLC), 2016 WL 2770540, aff'd, 698 Fed. App'x 624 (2d Cir. 2017).
A. Plaintiff's Allegations in the First Amended Complaint (“FAC”) (ECF 8)
The factual history here is summarized from the FAC, the complaint that was dismissed in my 2020 R&R.
On December 26, 2008, Plaintiff filed her 2008 Tort Case in New York state court against, inter alia, Pollack, Isaac, his firm Gladstein & Isaac, LLP, and his partner, Harvey Gladstein. (ECF 24-5 at 3; 2020 R&R at 3). While several dates are unclear due to the parties' poor submissions, it is apparent that during the course of litigation, Plaintiff's claims against Isaac were dismissed in 2009 because he was not properly served,and her claims against Pollack were dismissed because Plaintiff repeatedly failed to properly respond to discovery demands and court orders related to discovery. Id.; see also ECF 24-4 at 2.
Esposito v. Isaac, 68 A.D.3d 483 (1st Dep't 2009).
It is not clear whether this happened before Defendants were retained.
In or around August 2013, Plaintiff retained attorneys Gary, Chestnut, and another lawyer, Andrew Maloney (“Maloney”), to represent her against Isaac individually and Gladstein & Isaac, LLP. (ECF 8 ¶ 30). In her FAC, Plaintiff alleges that Gary made certain promises about how he planned to litigate the case. Plaintiff alleges that Isaac repeatedly boasted about being well-connected and that Gary, Chestnut, and Maloney “concocted and led a [c]onspiracy . . . to [s]abotage [Plaintiff's] case, get them dismissed and let Isaac and his law firm off the hook.” Id. ¶¶ 27, 47.
Maloney was voluntarily dismissed in order to retain diversity jurisdiction. See 2020 R&R at 5-6.
In 2013, defendants in the 2008 Tort Case filed motions for summary judgment. Id. ¶ 49. On August 11, 2015, the state court granted the remaining defendants' motions for summary judgment and all of Plaintiff's remaining claims in the 2008 Tort Case were dismissed. Plaintiff stated she thereafter had difficulty contacting Gary through fall 2015, and that his unavailability, coupled with the loss on summary judgment, made “a strong case to charge the Gary team with legal malpractice and outright fraud.” (ECF 8 ¶ 51).
Plaintiff stated she had subsequent court dates in the 2008 Tort Case on September 21, September 8, October 14, and October 15, 2015, and that no stenographer was present during any hearing. (ECF 8 ¶¶ 52-54). At the October 15, 2015 hearing, Plaintiff stated, without further detail, “Maloney, as usual, handled himself in a manner that screams for his disbarment” and that Plaintiff “is determined to get to the bottom of what really happened to her case.” Id. ¶ 54. The purposes of these hearings are not clear, in light of the August 2015 dismissal of all the remaining defendants from the 2008 Tort Case.
B. Dismissal of the FAC
On April 20, 2020, I recommended dismissal of all claims, with leave to amend. See 2020 R&R at 24. As relevant to the instant motion to dismiss, I noted that Plaintiff's legal malpractice and fraud claims were not sufficiently pleaded, and listed specific areas and elements that needed factual support in order to withstand a future motion to dismiss. See id. at 24-25. After the parties filed their objections (see ECF Nos. 50-55, 57, and 60), appealed Judge Gardephe's order (ECF Nos. 61, 73) and ultimately obtained a ruling from the Second Circuit on amendment (ECF 77), Plaintiff's former counsel, Edward Griffith (“Griffith”) and Peter Gleason (“Gleason”) at The Griffith Firm appeared in this case (ECF 66) and filed Plaintiff's SAC on April 15, 2022. (ECF 92). With weeks, Defendants moved to dismiss the SAC and the motion to dismiss was fully briefed at a time when all parties were represented by counsel. (See ECF Nos. 107, 109, 109, 112, 113, 119, and 123).
In particular, I found that there was a factual dispute concerning the date the parties' prior attorney-client relationship terminated. See 2020 R&R at 14-15.
Plaintiff's counsel withdrew (again) on January 18, 2023 (ECF 153), and Defendant Chestnut, who is a lawyer, entered his appearance, pro se, on his own behalf, and also representing his firm. (ECF 164).
C. Claims in the SAC
The SAC, drafted and filed by Plaintiff's former counsel, Gleason and The Griffith Firm, raises generally the same claims. It describes, for the first time, allegations that Defendants rejected a $750,000 settlement offer at the October 2014 JAMS mediation “without consulting” Plaintiff and otherwise prevented Plaintiff from speaking at the mediation, and allegations that Defendants committed malpractice by losing at summary judgment. (SAC ¶ 8). Apparently to support “but for” causation for Plaintiff's legal malpractice claims, Plaintiff attaches 16 exhibits, including the parties' summary judgment briefing in the 2008 Tort Case and various complaints against Defendants Gary and Chestnut concerning their conduct in other, unrelated cases. (ECF 92-1-16).
In support of Plaintiff's assertion that the complaint was timely, Plaintiff attaches, for the first time, a copy of an email from Plaintiff to Defendants dated December 28, 2015, in which Plaintiff apparently terminated the Defendants. (See ECF 92-11, Exhibit K). In her prior filings, Plaintiff had only provided an email in which she had agreed to retain Griffith and other correspondence with him to suggest that since Defendants had never terminated her, the attorney-client relationship continued until she had retained Griffith.
III. DISCUSSION
Defendants raise most of the same haphazard arguments as they raised in their first motion to dismiss, including, as relevant here, that Plaintiff has failed to state a claim and that her complaint is untimely.
A. Statute of Limitations and Relation Back
New York law provides a three-year statute of limitations for a legal malpractice action that “begins when the malpractice occurs, not when an individual discovers the malpractice or understands its full consequences.” Hanna v. O'Connell, No. 14-CV-7016 (RJS), 2015 WL 5223188, at *3 (S.D.N.Y. Aug. 12, 2015) (citation omitted); see also Shumsky v. Eisenstein, 96 N.Y.2d 164, 166 (2001). The New York statute of limitations applies in this Court. See Diffley v. Allied-Signal, Inc., 921 F.2d 421, 423 (2d Cir. 1990); see Personis v. Oiler, 889 F.2d 424, 426 (2d Cir. 1989).
The statute of limitations “may be deemed tolled under the theory of continuous representation until the attorney ceases representing the client in the specific matter at issue.” Nobile v. Schwartz, 56 Fed.Appx. 525, 526 (2d Cir. 2003) (summary order) (applying New York law); Shumsky, 96 N.Y.2d at 168 (“[I]n the context of a legal malpractice action, the continuous representation doctrine tolls the Statute of Limitations only where the continuing representation pertains specifically to the matter in which the attorney committed the alleged malpractice.”) (citations omitted).
To invoke the continuous representation doctrine, Plaintiff “must demonstrate ‘clear indicia of an ongoing, continuous, developing, and dependent relationship between the client and the attorney which often includes an attempt by the attorney to rectify an alleged act of malpractice.'” Patel v. Jani, No. 12-CV-9376 (KBF), 2016 WL 3637107, at *15 (S.D.N.Y. June 30, 2016) (quoting Luk Lamellen U. Kupplungbau GmbH v. Lerner, 166 A.D.2d 505, 506-07 (2d Dep't 1990)). “The fact that the attorney continued to generally represent the client does not trigger the continuous representation doctrine.” Patel, 2016 WL 3637107, at *15; see also Batsys v. Rothschild, 154 Fed.Appx. 260, 262 (2d Cir. 2005) (summary order); Shumsky, 96 N.Y.2d at 168. The continuous representation doctrine cannot be used to toll the statute of limitations after the relationship of trust and confidence ends. See Aseel v. Jonathan E. Kroll & Assoc., PLLC, 106 A.D.3d 1037, 1038 (2d Dep't 2013); Fleyshman v. Suckle & Schlesinger, PLLC, 91 A.D.3d 591, 592 (2d Dep't 2012).
a. Analysis
As discussed at length in my 2020 R&R, Plaintiff's claims may be time barred. Plaintiff filed her complaint on December 3, 2018 and her amended complaint on May 8, 2019. (ECF 1; ECF 8). The exact dates of Defendants' wrongful acts cannot be derived from the amended complaint, but Defendants were retained in August 2013 and some of the acts of malpractice allegedly “continu[ed] into the Fall of 2015.” (ECF 8 ¶¶ 30, 51). The last court date on which Plaintiff was clearly represented by Defendants, or where acts of malpractice allegedly occurred, was October 15, 2015. Id. ¶¶ 52-54. Further, in support of her assertion that the complaint was timely, Plaintiff provided a December 28, 2015 termination email, in which Plaintiff apparently terminated the Defendants “for cause.” (See ECF 92-11, Exhibit K). It is not plausible that Plaintiff would not have argued this point or introduced this termination email during the first objections period in 2020, or appeal to the Second Circuit or even addressed the statute of limitations in the SAC, since that was the sole reason I recommended leave to amend. Nonetheless, even if the action was timely filed and all the claims relate back, Plaintiff has still failed to state a claim, for the reasons that follow.
B. Failure to State a Claim: Legal Malpractice and Negligent Misrepresentation
A Rule 12(b)(6) motion to dismiss must be granted where the complaint fails to contain “enough facts to state a claim to relief that is plausible on its face.” Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007). When evaluating a motion to dismiss, the Court is limited to the complaint's factual allegations, documents attached to the complaint, matters of judicial notice, and documents which the plaintiff relied on in filing the complaint. Brass v. Am. Film Techs., Inc., 987 F.2d 142, 150 (2d Cir. 1993). If the parties present extrinsic evidence, the Court shall either exclude consideration of those documents or convert the motion to a motion for summary judgment. Chambers v. Time Warner, Inc., 282 F.3d 147, 154 (2d Cir. 2002). If the latter, the parties should be permitted the opportunity to conduct discovery and supplement the evidentiary record as contemplated by Federal Rule of Civil Procedure 56. Id.
Where, as here, Plaintiff is proceeding pro se, the complaint is to be “liberally construed.” Erickson v. Pardus, 551 U.S. 89, 94 (2007). This includes drawing all reasonable inferences in the plaintiff's favor and reading the allegations to “raise the strongest claims that the allegations suggest.” Grimes v. Fremont Gen. Corp., 785 F.Supp.2d 269, 282 (S.D.N.Y. 2011). Although the Court accepts the plaintiff's factual allegations as true when deciding a motion to dismiss, the Court does not need to accept “labels and conclusions” or “assertion[s]' devoid of ‘further factual enhancement.'” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
a. Analysis: Legal Malpractice
To state a claim for legal malpractice under New York law, a plaintiff must allege: “(1) an attorney-client relationship at the time of the alleged malpractice; (2) attorney negligence; (3) proximate causation and (4) actual damage to the client.” Bryant v. Silverman, 284 F.Supp.3d 458, 470 (S.D.N.Y. Feb. 14, 2018) (citations omitted). “An attorney is negligent if he or she fails to exercise that degree of care, skill and diligence commonly possessed and exercised by ordinary members of the legal community.” Id. at 471 (citation omitted). However,
[a] complaint that essentially alleges either an “error of judgment” or a “selection of one among several reasonable courses of action” fails to state a claim for malpractice .... Generally, an attorney may only be held liable for “ignorance of the rules of practice, failure to comply with conditions precedent to suit, or for his neglect to prosecute or defend an action.Id. (quoting Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d 328, 337 (2d Cir. 2006)) (citations omitted).
Under New York law, a plaintiff's recovery for legal malpractice is limited to pecuniary damages. McPhillips v. Bauman, 133 A.D.3d 998, 999 (3d Dep't 2015). “Where a plaintiff seeks damages for the value of a lost claim, she must establish the elements of proximate cause and actual damages by demonstrating that “but for” the attorney's conduct the client would have prevailed in the underlying matter[.]” Silverman, 284 F.Supp.3d at 471 (quoting Kirk v. Heppt, 532 F.Supp.2d 586, 592 (S.D.N.Y. Jan. 9, 2008) (internal quotations omitted)).
Plaintiff's SAC still alleges the necessary elements to her claims in highly conclusory and duplicative terms. The specific instances of alleged malpractice now arise from two events: (1) the JAMS mediation, and (2) the loss at summary judgment. It is not disputed that an attorneyclient relationship was formed between Plaintiff and Defendants, as Plaintiff stated that they were retained in August 2013. (ECF 92 ¶ 22). Thus, Plaintiff has sufficiently pleaded the first element. Concerning the alleged acts of negligence, I will address the mediation and the loss at summary judgment in turn.
i. Events at the Mediation
Plaintiff has alleged that Gladstein's insurer offered $750,000 at the mediation, that Gary rejected it “without consulting” Plaintiff, and told her - “[w]hile they were still at JAMS” -“that the offer was a “joke” because they would recover millions of dollars” closer to trial. (ECF 92 ¶ 68, 98). Defendants represented to Plaintiff that “‘there was no chance'” that they would lose on summary judgment, and thus Plaintiff “acquiesce[d]” in Defendants' “unilateral rejection” of the offer. (ECF 92 ¶¶ 100-102).
“Legal malpractice claims may . . . be based on loss of a settlement opportunity. Proximate cause is still required; a plaintiff will not prevail, even if an attorney goes so far as to fail to communicate a settlement offer to their client, if the plaintiff cannot establish that the attorney's deficient performance proximately caused damages.” Toussie v. Williams & Connolly, LLP, No. 20-CV-5921 (DG) (TAM), 2023 WL 5152509, at *6 (E.D.N.Y. July 26, 2023) (citing Rubenstein & Rubenstein v. Papadakos, 295 N.Y.S.2d 876, 877 (N.Y.App.Div. 1st Dep't 1968) (per curiam) (“While a failure to disclose an offer of settlement and submit to the client's judgment for acceptance or rejection is improper practice and could under certain circumstances constitute a defense to an action for legal services, it does not in and of itself give a right to affirmative relief.”). However, absent a “concrete settlement offer . . . damages sustained [a]re necessarily too speculative to be recoverable.” Id. (quoting Oppenheim & Co., P.C. v. Bernstein, 604 N.Y.S.2d 62, 63 (N.Y.App.Div. 1st Dep't 1993)).
Additionally, lawyers “are not guarantors of a favorable outcome in litigation,” and their reasonable strategic decisions made in the course of representing a client do not amount to malpractice. Iannazzo v. Day Pitney LLP, No. 4-CV-7413 (DC), 2007 WL 2020052, at *6 (S.D.N.Y. July 10, 2007) (quoting Ayala v. Fischman, No. 97-CV-6698 (LMM), 2001 WL 1491292, at *4 (S.D.N.Y. Nov. 26, 2001)); see also Morrison Cohen Singer & Weinstein v. Schwartz, No. 92-CV-1493 (TPG), 1995 WL 169032, at *3 (S.D.N.Y. Apr. 10, 1995) (“Reasonable judgments about trial strategy do not constitute negligence or malpractice.”); Rosner v. Paley, 65 N.Y.2d 736, 738 (N.Y.2d 1985) (“[S]election of one among several reasonable courses of action does not constitute malpractice.”).
Defendants continue to assert - and have submitted documentary evidence in support, including an affidavit from Maloney, who also represented Plaintiff at the mediation - that there was never an offer of $750,000 made at any time.(ECF 109-6 ¶ 13, Exhibit C - Affidavit of Attorney Andrew Maloney).While Defendants' assertion may be compelling and may even be true, it is not necessary to a finding that Plaintiff has still failed to state a claim for legal malpractice regarding the putative offer. Even assuming that a $750,000 offer was made and rejected by Defendants at the JAMS mediation, Plaintiff has failed to state a claim for legal malpractice arising from the mediation. According to Plaintiff's version of events in the SAC, Plaintiff knew at the mediation that a settlement offer had been made, and that Defendants had explained why they had rejected it. (SAC ¶¶ 30-32; see also ECF 109-6 at 4-5).Defendants did not “fail to communicate” a $750,000 settlement offer (if one was actually made); rather, Plaintiff “acquiesced” in the decision or accepted their advice not to take it, and now, seeks to find them liable for pressuring her to ratify their rejection of the offer. At best, then, Plaintiff's claim is that she followed advice of her counsel at the mediation that she later came to regret, or that turned out to be incorrect. This cannot support a claim for malpractice, as it falls squarely in the province of reasonable strategic decisions. Lawyers and parties often take positions in settlement that do not align squarely with the merits. Lawyers often lean on their clients in settlement and during a litigation; ultimately, if the client and the lawyer cannot agree on a course of action, the lawyer can withdrawor the client can fire their lawyer.Often, lawyers and their clients believe too strongly in their own chances of success or cannot see weaknesses in their case. That a lawyer or their client may have misjudged their chances on a dispositive motion or at settlement cannot give rise to a claim of legal malpractice in hindsight.
Defendants also suggest that it is not plausible to infer that events happened as Plaintiff now alleges, given the complete absence of any mention of a $750,000 settlement offer in the original complaint, the FAC, the allegedly contemporaneous email terminating Defendants in December 2015, or any of the other documents filed during the appeal. I tend to agree, but that is not the sole or even a necessary finding to support dismissal.
ECF 109-6 ¶ 13 (“At no time throughout the course of representing Ms. Esposito in the underlying action was there ever any offer/settlement offer conveyed by any of the Defendants, including by the Gladstein Defendants, in the amount of Seven Hundred Fifty Thousand Dollars ($750,000.00) to your Affirmant nor to Attorneys Willie Gary and Christopher Chestnut - not at or during the Mediation nor at any time during the course of the litigation when the Firms, Your Affirmant, Willie Gary or Christopher Chestnut represented Ms. Esposito. As no such offer was ever made, no such offer was ever rejected by the Firms, Your Affirmant, Willie Gary or Christopher Chestnut.”).
ECF 109-6 ¶ 10 (“All discussions, including any offers that may have been conveyed at and during the Mediation were done in the presence of Ms. Esposito, with Ms. Esposito's full participation and knowledge and, if any offer was conveyed by the Gladstein Defendants and if any such offer was rejected, it was Ms. Esposito as the Firms' Client, who ultimately rejected any offer that may have been conveyed, not only at the Mediation, but throughout the course of the litigation.”).
See ECF 153 (January 18, 2023 order granting attorneys' Griffith and Gleason's motion to withdraw); see also supra n.8.
See ECF 92-11, Exhibit K - Esposito's December 28, 2015 termination email. Indeed, Plaintiff (allegedly) fired Defendants on or around December 28, 2015, citing her displeasure with the loss on summary judgment. Oddly, the email firing Defendants makes no mention of the putative $750,000 offer or Plaintiff's displeasure at its rejection.
ii. Loss at Summary Judgment
Plaintiff's SAC still fails to plead “but for” causation and actual damages. “To plead the element of proximate cause, a plaintiff must allege that but for the attorney's negligence, she would have prevailed in the underlying matter or would not have sustained any ascertainable damages.” Silverman, 284 F.Supp.3d at 474 (internal quotations and citations omitted); see also Citidress II Corp. v. Toyaker, 105 A.D.3d 798, 798 (2d Dep't 2013) (“Speculative contentions about what might have happened had the defendant attorney . . . taken a different approach in litigating a case on behalf of the plaintiff [are] not sufficient to support the plaintiff's allegations of legal malpractice.”); Weil, Gotshal & Manges, LLP v. Fashion Boutique of Short Hills, Inc., 10 A.D.3d 267, 272 (1st Dep't 2004) (“[T]o establish the elements of proximate cause and actual damages . . . the client must meet the ‘case within a case' requirement, demonstrating that ‘but for' the attorney's conduct the client would have prevailed in the underlying matter or would not have sustained any ascertainable damages.”).
Here, the SAC alleges, in conclusory statements only, that “[b]ut for [Defendants' alleged acts of malpractice], the Civil Court would have denied the Gladstein Defendants' motion for summary judgment, the case would have proceeded to trial where Ms. Esposito would have obtained a judgment of at least $25 million.” (ECF 92 ¶ 74). To summarize, Plaintiff now asserts that the Defendants committed legal malpractice in “fail[ing] to raise New York State and City Human Rights Laws as a basis of holding the Gladstein Defendants liable for Isaac's sexual assault.” (ECF 119 at 18). While it is true that Justice Cohen did not reference the human rights laws as a basis for holding Gladstein liable for Isaac's sexual assault, (see ECF 92-9, Exhibit I - August 11, 2015 Decision Granting the Gladstein Defendants' Motion for Summary Judgment), the Appellate Division decision attached to the SAC (ECF 92-12, Exhibit L - January 27, 2017 Appellate Term Decision Denying Esposito's Appeal) makes clear that Plaintiff's state court complaint never pleaded a cause of action against the Gladstein defendants seeking to hold them liable under the state and city human rights laws, nor did Plaintiff ever seek to amend that complaint to add a claim under the Human Rights Laws. (ECF 92-12 at 2).
Isaac's assault occurred on October 7, 2005 (ECF 92-1, Exhibit A - October 7, 2005 Transcript), Plaintiff's state court case was filed on December 26, 2008, and Defendants did not come to represent Plaintiff until 2013, around 8 years after the assault. The Appellate Division's 2017 decision faults Plaintiff for raising, for the first time on appeal, the unpleaded claim under the Human Rights Laws, in doing so, it does not comment on the merits of the claim. The SAC does not suggest that Defendants should have sought to amend Plaintiff's complaint or that amendment to include this claim would have been granted in 2015 or any time during Defendants' representation. Instead, Plaintiff argues that Justice Cohen only considered the Human Rights Laws as they applied to employees, not to clients, and that Defendants' failure to argue the Human Rights Laws' application to clients “caused” Plaintiff's loss at summary judgment. In other words, Justice Cohen was aware of the Human Rights Laws, and he had already found that Gladstein “was not in a supervisory role to Isaac and did not have a duty to supervise his co-equal.” (ECF 92-9 at 6, Exhibit I). That Plaintiff asserts otherwise in the SAC (relying on Gladstein's deposition testimony that he was a “managing partner” of the general partnership) (ECF 92 ¶ 4, 78) does not make it so. See also Iannazzo, 2007 WL 2020052, at *8 (rejecting legal malpractice claim based on inadequacy of research and misstatement of legal standard where state court judge had stated and applied law correctly). Plaintiff's claim is too speculative and conclusory to plead “but for” causation and damages: there are no facts pleaded in the SAC to support a reasonable inference that Justice Cohen would have considered an unpleaded claim at summary judgment and ruled differently, or even that he was unaware of the provisions of the Human Rights Laws that applied to clients of law firms, or that a motion to amend to add this claim in 2013, when Defendants began their representation, would not have been denied as untimely.Indeed, given that Plaintiff's state court complaint did not contain a claim under the Human Rights Laws at the time Defendants began their representation, Defendants' strategy not to rely on an unpleaded claim at summary judgment “does not fall below ‘that degree of care, skill and diligence commonly possessed and exercised by a member of the legal community.'” lannazzo, 2007 WL 2020052, at *10 (quoting Nobile v. Schwartz, 265 F.Supp.2d 282, 288 (S.D.N.Y. May 28, 2023)).
“[W]e decline to entertain plaintiff's attempt to assert for the first time the unpleaded claim that defendant law firm is a “public accommodation” and therefore liable under the New York State and City Human Rights Laws. Plaintiff never pleaded any claims under the Human Rights Laws, never alleged that the law firm is a “public accommodation,” and did not move to amend the complaint to assert such claims. Liberality in pleading is stretched too far when it is deemed permissible to plead one claim and then substitute for it an entirely different one.” (ECF 92-12 at 2) (internal citations and quotation marks omitted).
See, e.g., Kassner v. 2nd Ave. Delicatessen Inc., 496 F.3d 229, 238 (2d Cir. 2007) (applying three-year statute of limitations to New York State Human Rights Law claims).
Thus, as Plaintiff's amended complaint fails to plead facts demonstrating malpractice, proximate cause, or damages, I recommend that Defendants' motions to dismiss all of Plaintiff's legal malpractice claims,Counts One through Six, be GRANTED.
Even if Counts One, Two, and Three were not duplicative of Count Four, Plaintiff has failed to plead any non-conclusory facts to suggest that she would have obtained a different result. She has made no non-conclusory or specific factual allegations about what her attorneys did or did not do that constituted a breach of their duties to her, or that led to dismissal of the 2008 Tort Case.
b. Analysis: Negligent Misrepresentation
Plaintiff does not address, separately, why her standalone negligent misrepresentation claim should not be dismissed. As a preliminary matter, this was not a claim within the scope of the recommended amendment. See 2020 R&R at 24-25. Nonetheless, Plaintiff has failed to state a claim of negligent misrepresentation against Defendants.
“Under New York law, the elements for a negligent misrepresentation claim are that (1) the defendant had a duty, as a result of a special relationship, to give correct information; (2) the defendant made a false representation that he or she should have known was incorrect; (3) the information supplied in the representation was known by the defendant to be desired by the plaintiff for a serious purpose; (4) the plaintiff intended to rely and act upon it; and (5) the plaintiff reasonably relied on it to his or her detriment.” Hydro Investors, Inc. v. Trafalgar Power Inc., 227 F.3d 8, 20 (2d Cir. 2000). “[T]he alleged misrepresentation must be factual in nature, [however], and not promissory or relating to future events that might never come to fruition.” Id. at 20-21 (collecting cases).
Here, Plaintiff's complained-of “misrepresentation” relates to Defendants' assertions that Plaintiff would not lose the pending summary judgment motion or that she would likely recover more at a later settlement or at trial. (ECF 92 ¶ 8, 27-29). These statements relate to future events and cannot be the basis of a negligent misrepresentation claim. Accordingly, I recommend that Plaintiff's negligent misrepresentation claim also be DISMISSED.
IV. CONCLUSION
Because Plaintiff has not pleaded facts to demonstrate proximate cause or damages for her malpractice claim, nor has she pleaded statements of fact to support a negligent misrepresentation claim, I respectfully recommend that Defendants' motion to dismiss be GRANTED in its entirety.
Finally, notwithstanding Plaintiff's pro se status, she has already been given one opportunity to amend and any future amendments would be futile.
V. OBJECTIONS
In accordance with 28 U.S.C. § 636(b)(1) and Fed.R.Civ.P. 72(b), the parties shall have fourteen (14) days (including weekends and holidays) from receipt of this Report to file written objections. See also Fed.R.Civ.P. 6 (allowing three (3) additional days for service by mail). A party may respond to any objections within fourteen (14) days after being served. Such objections, and any responses to objections, shall be addressed to the Honorable Paul G. Gardephe, United States District Judge. Any requests for an extension of time for filing objections must be directed to Judge Gardephe.
FAILURE TO FILE OBJECTIONS WITHIN FOURTEEN (14) DAYS WILL RESULT IN A WAIVER OF OBJECTIONS AND WILL PRECLUDE APPELLATE REVIEW. See Thomas v. Arn, 474 U.S. 140, 155 (1985); IUE AFL-CIO Pension Fund v. Herrmann, 9 F.3d 1049, 1054 (2d Cir. 1993); Frank v. Johnson, 968 F.2d 298, 300 (2d Cir. 1992); Wesolek v. Canadair Ltd., 838 F.2d 55, 58 (2d Cir. 1988); McCarthy v. Manson, 714 F.2d 234, 237-38 (2d Cir. 1983). If Plaintiff wishes to review, but does not have access to, cases cited herein that are reported on Westlaw, she should Defendants are directed to serve a copy of this Report and Recommendation on pro se Plaintiff by mail and file proof of service on the docket within seven days.
Respectfully submitted,