Opinion
INDEX NO. 154213/2018
02-26-2019
MICHAEL PICARELLA, Plaintiff, v. LIDDLE & ROBINSON L.L.P., and JAMES HUBBARD, Defendants.
NYSCEF DOC. NO. 20
MOTION DATE __________
MOTION SEQ. NO. 001
DECISION AND ORDER
HON. BARBARA JAFFE: The following e-filed documents, listed by NYSCEF document number (Motion 001) 7, 8, 9, 10, 11, 12, 13, 14, 15, 16, 17, 18, 19 were read on this motion to dismiss.
In this action for legal malpractice and breach of fiduciary duty, defendants move pursuant to CPLR 3211(a)(7) for an order dismissing the complaint. Plaintiff opposes.
I. COMPLAINT (NYSCEF 9)
On or about May 5, 2011, plaintiff became employed at HSBC Securities (USA) Inc. as Senior Vice President for Institutional Sales and Chief Operational Officer/Deputy Head of Business Development for the Americas. His immediate supervisor was non-party Eileen Hedges. Seated between plaintiff and Hedges on the trading floor for HSBC was non-party Melissa Parvis, an analyst for Institutional Sales who also reported to Hedges.
Plaintiff had observed Hedges disparaging and sexually harassing Parvis, repeatedly engaging her in sexual banter and innuendo, discussing her own sexual activities, and once, exposing her breasts to plaintiff and Parvis on the HSBC trading floor. Plaintiff unsuccessfully and repeatedly asked Hedges to stop. She then began to retaliate against him.
Plaintiff reported Hedges's sexual harassment of Parvis to his supervisors and other members of the HSBC management team, including those in human resources, which resulted in Hedges's harassment of plaintiff and disparagement of him within the organization. Plaintiff then reported Hedges's retaliatory conduct to members of the HSBC management team.
Shortly after plaintiff had conveyed his concerns about Hedges's conduct to his supervisors, Parvis was fired, allegedly due to her intimate relationship with another HSBC employee, James Rist.
In or about June 2012, concerned with HSBC's failure to address Hedges's conduct, the firing of Parvis, and Hedges's conduct toward him following his initial complaints, plaintiff sought legal advice from defendant Hubbard, a partner at defendant L&R. In July 2012, plaintiff signed a retainer agreement with L&R to represent him in connection with any claims he might have against HSBC. Hubbard asked that plaintiff keep him informed of any developments concerning his employment and treatment at HSBC so that it could be determined whether he had a viable claim.
In or about September 2012, Hedges was assigned to a different position at HSBC, and although plaintiff had been assured when hired that he would assume Hedges's position and title should she be promoted or reassigned, he was not promoted to her position but was assigned to report to a vice-president junior to him. Plaintiff's responsibilities were then reduced, and he was designated a "problem case" by human resources and senior management.
When plaintiff told Hubbard of the situation, Hubbard advised that he now had a basis for filing an employment discrimination and retaliation claim against HSBC. Hubbard told plaintiff that he did not want to "surface" as his attorney yet. Plaintiff then filed a sexual harassment and retaliation complaint with the appropriate head of human resources, alleging that he had been passed over for Hedges's position and demoted in retaliation for his complaints about her misconduct toward Parvis.
At or about this same time, Hubbard asked that plaintiff introduce him to Parvis in order to represent her, and plaintiff agreed. In the fall of 2012, Parvis retained L&R to represent her in connection with her claims against HSBC, which plaintiff became aware of in October 2012. Due to Rist's relationship with Parvis, HSBC retaliated against him as well. He too retained Hubbard to represent him, of which plaintiff learned in or around December 2012.
On or about December 6, 2012, Hubbard advised plaintiff that he intended to inform HSBC the following day that he represented him and to file a complaint with the US Equal Employment Opportunity Commission on his behalf. Instead, he advised HSBC that L&R was representing Parvis, and he filed a complaint against HSBC on her behalf.
In or about April 2013, Hubbard assured plaintiff that he was pursuing Parvis's claims and that plaintiff's case would be strengthened if he waited until the Parvis matter was resolved. Plaintiff relied on Hubbard's and L&R's advice. He remained at HSBC, where his employment responsibilities continued to be reduced and marginalized until, by June 2013, he had no work to perform.
Upon plaintiff's information and belief, in or about May 2013, L&R and Hubbard settled Parvis's claims against HSBC for approximately $1 million. In connection with the settlement, Parvis entered into a confidentiality agreement that restricted her and Hubbard's ability to discuss her claims and the terms of the settlement.
The following month, L&R filed a complaint on plaintiff's behalf with the US Equal Employment Opportunity Commission. Plaintiff was placed on administrative leave by HSBC. On or about December 2013, plaintiff was issued a Notice of Right to Sue Letter by the EEOC.
On or about June 20, 2014, L&R filed a federal civil lawsuit on plaintiff's behalf against HSBC in the Southern District of New York, charging unlawful retaliation in violation Title VII of the Civil Rights Act of 1964, the New York City Human Rights Law, and the New York State Human Rights Law. Plaintiff was terminated by HSBC in March 2015, purportedly due to performance issues.
During the discovery phase of the federal action, HSBC's counsel deposed Parvis, who was represented by an attorney referred to her by Hubbard, who never disclosed to the attorney that he represented Parvis or that he had negotiated her settlement and limited her ability to disclose information that may have been beneficial to plaintiff.
Upon plaintiff's information and belief, L&R filed a federal action against HSBC on behalf of Rist as well. Hubbard did not disclose that he had a conflict of interest based on his representation of Parvis, Rist, and plaintiff, never sought plaintiff's waiver, and plaintiff never waived any conflict of interest that arose by virtue of Hubbard's or L&R's representation of Parvis and Rist.
During the pendency of the federal action, L&R and Hubbard asked plaintiff to consent to and participate in two mediation sessions with Rist and HSBC. Upon plaintiff's information and belief, HSBC offered a settlement package of $100,000 to $500,000 to Rist, but only if both Rist and plaintiff agreed to settle. As Rist did not agree to the settlement package, HSBC declined to pursue further settlement negotiations with plaintiff.
In or about June 2015, after reviewing a copy of the Parvis settlement agreement with HSBC and meeting with Hubbard, Liddle told plaintiff that he "should consider" seeking new counsel but did not explain why. Subsequently, Hubbard assured plaintiff that there was no need for new counsel.
In preparation for trial of his claims, plaintiff forwarded to Hubbard a list of approximately 30 potential witnesses. Upon plaintiff's information and belief, neither Hubbard nor anyone else connected with L&R "contacted each of the witnesses on the witness list." Hubbard also failed to file a complete witness list with the court containing the names of all witnesses identified by plaintiff within the requisite time period and was precluded from calling some or all of the potential witnesses identified by plaintiff. HSBC then agreed to allow Hubbard to add one potential witness to the trial witness list, but only if plaintiff submitted to an additional and third day of deposition.
A trial was conducted from December 5, 2016 to December 15, 2016. Hubbard placed Parvis on the witness list for trial of the federal action. Although plaintiff had asked that she be called to testify, Hubbard did not call her, nor did he call Hedges or Rist. Upon plaintiff's information and belief, L&R failed to interpose appropriate objections during summation and failed to accede to plaintiff's requests that he seek a mistrial or judgment notwithstanding the verdict. The jury rendered a verdict against plaintiff.
As his first cause of action for a breach of fiduciary duty, plaintiff asserts that defendants' representation of Parvis and Rist gave rise to conflicts of interest with their representation of him in connection with the settlement of Parvis's claims and the joint settlement negotiations with Rist, of all of which defendants had failed to advise him, and which he was not asked to waive, nor did he waive. Upon information and belief, in representing Parvis, defendants received information relevant to plaintiff's claims which defendants did not disclose to him or utilize to support his claims against HSBC either because the information constituted privileged communications with Parvis or because disclosure was prohibited under the terms of Parvis's settlement agreement. And due to defendants' representation to the federal court that plaintiff's case was related to Rist's, plaintiff lost an opportunity to settle his case.
Nor did defendants timely interpose his claims or represent him in accordance with their fiduciary responsibilities at the time of the mediations or at Parvis's deposition or in connection with his claims against HSBC, including, but not limited to, their failure to call Parvis as a witness at the trial. He also claims that defendants' interest in a portion of the settlement received by Parvis created an additional conflict. Upon plaintiff's information and belief, defendants received a fee for services, including a contingency fee based upon the settlement paid to Parvis by HSBC.
As plaintiff's attorneys, defendants occupied a position of trust and confidence that resulted in a fiduciary relationship with plaintiff which they breached. Defendants' breach of their fiduciary duties was a "substantial factor" resulting in plaintiff's losses, including salary and costs incurred in connection with the HSBC litigation, attorney's fees received by defendants from their representation of plaintiff, Parvis, and Rist, and all income lost by plaintiff.
In his second cause of action, for legal malpractice, plaintiff claims that defendants failed to represent him in accordance with the standard of care and the prevailing Rules of Professional Conduct by failing to identify and call witnesses in the federal action, failing to preserve his rights at the trial or disclose conflicts of interest, and failing to pursue settlement negotiations with HSBC vigorously and appropriately. They also improperly delayed filing his claim against HSBC, thereby causing him to be subjected to a hostile work environment and the termination of his employment.
II. CONTENTIONS
A. Defendants (NYSCEF 7-11)
Defendants observe that plaintiff's case was tried before a jury over eight trial days, and eleven HSBC employees listed on plaintiff's final witness list testified on direct and cross-examination. (Picarella v HSBC [USA] Securities Inc., Case No. 14-cv-4463 (SDNY), Dkt Nos. 120, 188, 190, 192, 196, 198, 200, 202, 204). The jury's verdict of no liability was affirmed by the Second Circuit, which rejected his contention that the arguments of HSBC's counsel in the opening statement and summation were improper and inflammatory, and noted that "HSBC's theory of the case was that [plaintiff] showed poor performance beginning well before he complained of the sexual harassment of a co-worker and that he complained primarily to protect himself from being fired." (Picarella v HSBC Sec. [USA] Inc., 2018 U.S. App. LEXIS 2327, at *3-4 [2d Cir Jan. 31, 2018]).
Absent any specific factual allegations in the complaint establishing that but for defendants' deficient representation there would have been a more favorable outcome in the underlying matter, defendants argue that plaintiff does not state a claim for relief. Rather, plaintiff complains about their strategy in prosecuting his case, which does not constitute a basis for a cause of action for legal malpractice. Thus, plaintiff fails to allege that defendants proximately caused his damages.
That defendants "failed to properly identify and call" Parvis, Rist, and Hedges as witnesses at the trial, defendants assert, absent any allegation that the testimony they may have given would have altered the jury's verdict also states no claim for legal malpractice. As Parvis was terminated by HSBC approximately one year before plaintiff filed his EEOC charge and three years before he was terminated by HSBC, Parvis would have no knowledge of HSBC's alleged retaliation against plaintiff. And, when Hedges was reassigned in September 2012, two and a half years before plaintiff was terminated, and was no longer his supervisor, she too would have had no knowledge of the alleged retaliation. Nor does plaintiff allege that he worked with Rist, or that Rist knew about the alleged retaliation. Consequently, plaintiff offers no basis for claiming that Parvis, Hedges, Rist, or any other uncalled witness would have supported his retaliation claim. Moreover, the decision to identify or call specific witnesses at trial, especially those who did not work with plaintiff or were fired before his termination, constitutes a strategic decision, which cannot be the basis for a legal malpractice claim.
Plaintiff's contention that defendants "failed to preserve [his] rights" at the trial by not interposing "appropriate objections during summation" and by not seeking judgment notwithstanding the verdict or a mistrial are speculative and bereft of factual bases, availability or reason for their potential success. Thus, these allegations do not state a cause of action for legal malpractice. Moreover, the claim that L&R "failed to vigorously and appropriately pursue settlement negotiations with HSBC," which allegedly resulted in the "lost opportunity to settle" are conclusory, and the decision to proceed to trial, instead of settling the lawsuit, is reasonable and does not state a claim for malpractice. Rather, plaintiff only speculates that an alternative strategy would have redounded to his benefit.
Defendants also argue that plaintiff's claims that the delay in filing his claim caused him to be subjected to a hostile work environment and termination of his employment fail to allege how the filing of his "claim" was "improperly delayed," noting that the EEOC charge and his complaint were timely filed and that the trial followed and proceeded promptly after the conclusion of pretrial proceedings. Furthermore, the decision on when to file a complaint is strategic, and in any event, an attorney's error of judgment cannot constitute malpractice. It is well-settled that a conflict of interest does not alone support a claim for legal malpractice. Thus, plaintiff's conclusory allegations in that regard do not state a cause of action for legal malpractice.
Defendants also maintain that the cause of action for breach of fiduciary duty must be dismissed as duplicative of the claim for legal malpractice as it arises from the same facts as those alleged in support of the cause of action for legal malpractice and plaintiff alleges similar damages with respect to each. Each cause of action is based on defendants' representation of plaintiff in the federal action and each arises from defendants' representation of Parvis and Rist and failure to disclose the alleged conflict of interest. While the breach of fiduciary duty claim depends on the alleged conflict of interest, the alleged malpractice is based on defendants' alleged failure to (1) properly represent plaintiff, (2) identify and call witnesses, (3) disclose conflicts of interest, and (4) appropriately pursue settlement negotiations.
B. Plaintiff (NYSCEF 13-17)
Plaintiff denies that defendants' conduct was strategic. Rather, it reflects a failure to meet the standard of care. That failure was not evidenced solely by the decisions made at trial, but from defendants' conflicts of interest, which arose before any claim was filed against HSBC. Before Parvis or Rist retained defendants, plaintiff was "left to flounder on his own" because Hubbard refused to "surface" as plaintiff's counsel, allowing HSBC to diminish plaintiff's responsibilities, thereby giving it reason to challenge plaintiff's performance.
Once the conflicts arose, defendants' conduct deprived plaintiff of the opportunity to seek new employment after he was constructively discharged by HSBC, and he was prevented from settling his claims at mediation because "Hubbard asked the Court to associate" plaintiff's case with Rist's, leaving the two "joined at the hip." Plaintiff was also damaged by defendants' failure to call Parvis, Hedges, or Rist as trial witnesses, their disregard of his request to call other witnesses, and their untimely submission of a witness list. While defendants may reasonably assert that the amount of damages constitutes a question of fact, his damages are indisputable.
Plaintiff also argues that to sustain a claim for legal malpractice, he need only show that but for the alleged negligence, the particular result sought could, not would, have been achieved. Here, defendants' conduct enabled HSBC to create a hostile work environment and "concoct justification" for his termination. Defendants also prevented plaintiff from engaging in meaningful settlement negotiations, damaged his reputation, and undermined his retaliation claims, resulting in a loss of income.
Plaintiff asserts that he is not required to show a specific amount of damages or that he would have prevailed at trial, but only that he suffered ascertainable damages, and that defendants' conclusory allegations that plaintiff "will never be able to prove damages" are an insufficient basis for dismissal.
Although a conflict of interest does not in and of itself constitute malpractice, defendants may be held liable for the conflicts because they resulted in damage to plaintiff and prevented them from representing plaintiff consonant with the requisite standard of care. HSBC was thereby enabled in creating a scenario to support its termination of plaintiff's employment and diminishing his prospects for future employment. Moreover, defendants' conflicts prevented resolution of the dispute at mediation.
Plaintiff states a claim for a breach of fiduciary duty because the facts giving rise to the breach differ from those for malpractice. Here, defendants' decisions to accept representation of Parvis and Rist, and to negotiate a settlement for Parvis without disclosing the terms to plaintiff, constitute a breach of their fiduciary duty to plaintiff, and by refusing to call Parvis as a witness, they prevented him from seeking disclosure of Parvis's settlement terms, including whether her settlement was premised on the same issues that had precipitated his complaints at HSBC, information that was fundamental to plaintiff's ability to demonstrate that his termination was retaliatory and discriminatory.
C. Defendants' reply (NYSCEF 18-19)
Defendants observe that plaintiff does not dispute that strategic decisions, or a failure to prevail at trial, do not constitute a basis for a legal malpractice claim. Rather, plaintiff blames defendants for HSBC's decision to diminish his work responsibility, for his decision to remain at HSBC, and for his inability to find another job. The alleged damages began to accrue before the alleged conflicts arose, when Parvis and Rist retained defendants, and are due to HSBC's conduct, over which defendants had no control.
Defendants note that plaintiff's opposition contains new facts that are not set forth in the complaint, including the harm to his professional reputation or potential future employment, for which plaintiff offers no evidence. In addition, the complaint contains no allegation that "Hubbard asked the Court to associate" plaintiff's and Rist's cases, and to the extent that it is considered, the local rules in federal court require disclosure of related cases.
Plaintiff's alleged damages, defendants contend, are vague and conclusory, nor does he consider that a jury heard and rejected his claims. Moreover, that defendants did not call Parvis as a witness is undermined by the fact that, at trial, HSBC stipulated to the harassment of Parvis. Plaintiff also fails to allege how the testimony of any of the witnesses not called at trial, including Parvis, Rist or Hedges, would have resulted in a different outcome.
To the extent that HSBC harmed plaintiff by creating a hostile work environment, defendants had no control over HSBC and did not prevent plaintiff from seeking new employment, and its conduct at the settlement negotiations is equally out of defendants' control, as was the decision to negotiate plaintiff's and Rist's claims jointly.
Defendants note that absent any argument concerning their alleged failure to register certain objections during summation, seek judgment notwithstanding the verdict, or seek a mistrial, plaintiff waives those arguments.
Defendants clarify that they do not contend that a conflict of interest cannot be a basis for malpractice, but rather, the conflicts alleged here do not support a claim for malpractice, and maintain that plaintiff only states that plaintiff, Parvis, and Rist had "competing interests."
Plaintiff's claim for a breach of fiduciary duty must be dismissed because it arises from the same factual allegations as the malpractice claim, and plaintiff cannot base his breach of fiduciary duty claim on the representation of Parvis because she had no knowledge of any retaliation, as she was terminated by HSBC approximately one year before plaintiff filed his complaint and three years before his termination from HSBC.
III. ANALYSIS
In considering a motion to dismiss pursuant to CPLR 3211(a)(7) for a failure to state a cause of action, the court must construe the pleading liberally, accept the facts alleged to be true, and afford the plaintiff "the benefit of every possible favorable inference." (JP Morgan Sec. Inc. v Vigilant Ins. Co., 21 NY3d 324, 334 [2013] [citation omitted]; AG Cap. Funding Partners, LP v State St. Bank & Trust Co., 5 NY3d 582, 591 [2005]; Leon v Martinez, 84 NY2d 83, 87 [1994]). Nonetheless, allegations asserting bare legal conclusions are not entitled to such consideration. (Simian v Blank, 19 NY3d 46, 52 [2012]).
In accepting all of the plaintiff's allegations as true, the court may not express "any opinion as to the plaintiff's ability to ultimately establish the truth of these averments before the trier of the facts." (Cooper v 620 Properties Assocs., 242 AD2d 359, 360 [2d Dept 1997], quoting 219 Broadway Corp. v Alexander's, Inc., 46 NY2d 506, 509 [1979]). "The motion must be denied if from the four corners of the pleadings 'factual allegations are discerned which taken together manifest any cause of action cognizable at law.'" (511 W. 232nd Owners Corp. v Jennifer Realty Co., 98 NY2d 144, 152 [2002], quoting Polonetsky v Better Homes Depot, Inc., 97 NY2d 46, 54 [2001]; Guggenheimer v Ginzburg, 43 NY2d 268, 275 [1977]).
A. Legal malpractice
To state a cause of action for legal malpractice, plaintiff must allege attorney negligence, that the negligence was the proximate cause of the loss sustained, and actual damages. (Reibman v Senie, 302 AD2d 290, 290 [1st Dept 2003]). To be negligent, an attorney's conduct must be below the "ordinary and reasonable skill and knowledge commonly possessed by a member of the profession." (Bernstein v Oppenheim & Co., P.C., 160 AD2d 428, 430 [1st Dept 1990]). Dissatisfaction with an attorney's reasonable strategic choices and tactics does not constitute a basis to state a cause of action for attorney negligence. (Kassel v Donohue, 127 AD3d 674 [1st Dept 2015], lv dismissed 26 NY3d 940 [2015]). Plaintiff must also allege in the complaint that "but for" defendants' malpractice, plaintiff would not have suffered "actual ascertainable damages." (Pellegrino v File, 291 AD2d 60, 63 [1st Dept 2002], lv denied 98 NY2d 606 [2002]). Speculation as to what might have occurred if the attorney acted differently under the circumstances does not establish "but for" causation. (Wexler v Shea & Gould, 211 AD2d 450, 451 [1st Dept 1995]). Likewise, speculation as to damages does not constitute a basis for malpractice. (Pellegrino, 291 AD2d at 63; cf. Kaminsky v Herrick, Feinstein LLP, 59 AD3d 1, 13 [1st Dept 2008], lv denied 12 NY3d 715 [2009] [cause of action for legal malpractice may not be based on conflict of interest absent allegation that it resulted in actual damages]).
To the extent that plaintiff argues that the standard for malpractice is only that but for the alleged negligence, the particular result sought "could have" been achieved, he relies on Parker, Chapin, Flattau & Klimpl v Daelen Corp. (59 AD2d 375, 379 [1st Dept 1977] ["party must show that but for the negligence, the particular result sought by the client would or could have been achieved"]). Since then, the Court has clarified that the standard is "would have" not "could have." (See e.g., Kaminsky, 59 AD3d 1, 9 [standard is that outcome "would" be different but for attorney negligence]; Billis v Dinkes & Schwitzer, 30 AD3d 260, 260 [1st Dept 2006] [same]; Katash v Richard Kranis, P.C., 229 AD2d 305, 306 [1st Dept 1996], lv dismissed 89 NY2d 981 [1997] [same]).
1. Alleged conflict arising from plaintiff's concurrent representation of Parvis
a. Defendants' delay of plaintiff's action
Absent a specific allegation in the complaint as to how plaintiff's outcome would have been different had plaintiff's action been filed before Parvis's, plaintiff does not state a cause of action for legal malpractice. (See Wagner Davis P.C. v Gargano, 116 AD3d 426, 426 [1st Dept 2014]). In Wagner, an attorney's former clients alleged that they would have prevailed on a motion seeking a preliminary injunction if it had been filed earlier, whereas the attorney argued that the delay was intended to allow a new expert to prepare a report. (Id.). In affirming the trial court's rejection of the malpractice claim based thereon, the Court held that the former clients had "failed to establish that they would have been successful on the motion absent counsel's delay," and that in any event, the decision to delay filing the motion to allow for a new expert report was a nonactionable strategic decision. (Id.). Here too, not only does plaintiff fail in his complaint to allege how the outcome would have been different had his case been prosecuted first, but the complaint sets forth defendants' reasonable strategic determination to obtain an adjudication of whether Parvis was harassed, a determination that plaintiff does not challenge beyond conclusorily stating that his case should have preceded Parvis's.
b. Failure to call Parvis as a trial witness
Absent an explanation as to what information Parvis would have offered if called to testify or how such testimony would have influenced the outcome of his case, plaintiff's allegation that defendants should have called her as a witness at trial is fatally conclusory. (See A.H. Harris & Sons Inc. v Burke, Cavalier, Lindy & Engel P.C., 202 AD2d 929, 930 [3d Dept 1994] [mere allegation that attorney failed to call available witness is insufficient, absent allegation of how failure fell below attorney standard of care]). Moreover, the decision to call witnesses falls within an attorney's strategic discretion. (See Sitomer v Goldweber Epstein, LLP, 139 AD3d 642, 643 [1st Dept 2016], lv denied 28 NY3d 906 [2016] [defendants' decision to not call witness generally is strategic and not actionable]).
Even if defendants' "refusal" to call Parvis was the product of a conflict of interest, the allegation remains fatally conclusory. In any event, plaintiff alleges in the complaint that Parvis's settlement with HSBC precluded her from talking about her claims and the terms of her settlement, thereby posing no obstacle to her testifying about the alleged retaliation against plaintiff, and HSBC stipulated to the fact of Parvis's harassment. Consequently, any alleged conflict arising from defendants' concurrent representation of Parvis was not the cause of her failure to testify. And even if the settlement agreement effectively precluded her from testifying for plaintiff, nowhere in his complaint does plaintiff allege that independent counsel would have been able to negotiate such a provision out of the agreement with HSBC or that Parvis was otherwise willing to testify or able to testify about HSBC's retaliation against him. Rather, there is no factual basis within the four corners of the complaint from which it may be reasonably inferred that Parvis would have useful testimony to offer plaintiff, as HSBC did not designate plaintiff a "problem case" or reduce his responsibilities until after Parvis had been fired. All told, plaintiff's allegations reflect a disagreement with defendants' strategic decisions, as opposed to legal malpractice.
2. Alleged conflict of interest arising from defendants' concurrent representation of Rist
Absent any claim that he would have received an offer from HSBC or that he would have accepted one, that plaintiff could have received an offer from HSBC had he been represented by an attorney who did not represent Rist is speculative and nonactionable. (See Engelke v Brown Rudnick Berlack Israels LLP, 111 AD3d 444, 444 [1st Dept 2013] [plaintiff unable to show that he would have been able to settle litigation, and therefore did not state claim for malpractice]; Santiago v Fellows, Epstein & Hymowitz, P.C., 66 AD3d 758, 759 [2d Dept 2009] [failure to settle case is not malpractice where opposing party never made settlement offer]). Additionally, as the complaint contains no allegation that defendants erred in categorizing his action as related to Rist's, it does not state that defendants were the cause of the joint mediation.
3. Other alleged trial errors
As plaintiff does not oppose defendants' argument concerning his claims that they committed various instances of malpractice in representing him at trial, he has waived them. (See Patel v Am. Univ. of Antigua, 104 AD3d 568, 569 [1st Dept 2013] [arguments not made in opposition to motion to dismiss are waived]). Even if not waived, plaintiff does not state a cause of action as defendants' decisions concerning trial objections and their determination not to seek a mistrial are strategic, absent factual allegations as to the bases for those objections and for a mistrial. (See Brookwood Companies, Inc. v Alston & Bird LLP, 146 AD3d 662, 667 [1st Dept 2017] [hindsight arguments concerning selection of one of several reasonable courses of action does not state cause of action for malpractice]). Moreover, plaintiff offers no causative link between defendants' conduct at trial and the alleged conflict of interest.
Plaintiff's complaint that defendants failed to call other witnesses at trial fails for the same reasons set forth above (supra, III.A.1.b). In any event, he does not identify those witnesses or "each" of the approximately 30 witnesses that defendants allegedly failed to contact.
For all of these reasons, plaintiff's claim for legal malpractice amounts to a disagreement with defendants' reasonable strategic decisions and lacks essential allegations of causation, as does plaintiff's argument that the alleged conflicts harmed his future job prospects.
B. Breach of fiduciary duty
When a cause of action for a breach of fiduciary duty is duplicative of a claim for legal malpractice and does not result in damages that are separate and distinct from those of the alleged malpractice, it is to be dismissed. (Cosmetics Plus Grp., Ltd. v Traub, 105 AD3d 134, 143 [1st Dept 2013], lv denied 22 NY3d 855 [2013]). Plaintiff's breach of fiduciary duty claim is premised on defendants' alleged conflicts of interest, which are also the bases for his legal malpractice claim.
In any event, even if not duplicative, plaintiff does not allege that defendants' alleged breach was the "but for" cause of plaintiff's loss. (See Knox v Aronson, Mayefsky & Sloan, LLP, 168 AD3d 70 [1st Dept 2018] [to recover for breach of an attorney's fiduciary duty, "plaintiff must establish the 'but for' element of malpractice"]; Weil, Gotshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271-272 [1st Dept 2004] [standard for breach of attorney's fiduciary duty is "but for" causation, not "substantial factor"]). Moreover, even if defendants' concurrent representation of Parvis and plaintiff constituted a breach of their fiduciary duty to plaintiff, he does not demonstrate that but for that breach, he would have been able to summon her. (See supra, II.A.1.b.).
Plaintiff's allegation that in settling Parvis's case, Hubbard had received information relevant to his action which he neither disclosed nor utilized to support his action against HSBC is conclusory absent any additional fact or allegation that but for the concurrent representation, he would have obtained access to such information and that the information was relevant to his case. There is no fact set forth in the complaint from which it may be inferred that Parvis had any knowledge of HSBC's alleged retaliation against plaintiff (supra, II.A.1.b.). Rather, absent an allegation of any information other than the fact of Parvis's harassment, to which HSBC stipulated at trial, defendants' decision to represent her and negotiate a settlement for her without disclosing the terms to plaintiff does not constitute a breach, and in any event, it too is duplicative of his claim of legal malpractice based thereon.
IV. CONCLUSION
Plaintiff's complaint is overwhelmingly based on conclusory and speculative assertions that require the drawing of too many inferences to state causes of action for legal malpractice and a breach of fiduciary duty. (See Heritage Partners, LLC v Stroock & Stroock & Lavan LLP, 133 AD3d 428, 429 [1st Dept 2015], lv denied 27 NY3d 904 [2016] [the "gross speculation of future events" in the plaintiffs' allegations were insufficient to satisfy "but for" causation element required to state malpractice claim]).
While defendants' representation of plaintiff was not perfect, and was possibly unethical (see 22 NYCRR § 1200 [Rule 1.7]), their concurrent representation of three parties with differing interests does not, in and of itself, state a claim for either cause of action. That another member of L&R told plaintiff that he "should consider" seeking new counsel "without explanation" does not constitute an admission of a disqualifying conflict, nor does plaintiff so allege. Although plaintiff need not entirely eliminate alternative factors contributing to his loss in the complaint, he failed to allege facts sufficient to show that but for defendants' malpractice and breach, he would not have sustained loss. (See Voluto Ventures, LLC v Jenkens & Gilchrist Parker Chapin LLP, 46 AD3d 354, 355 [1st Dept 2007] [evidence of other factors contributing to loss not considered at pleading stage, but plaintiff must allege that legal malpractice was proximate cause of damages]).
Accordingly, it is hereby
ORDERED, that defendants' motion is granted and the complaint is dismissed in its entirety, with costs and disbursements to defendants as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further
ORDERED, that the Clerk is directed to enter judgment accordingly. 2/26/2019
DATE
/s/ _________
BARBARA JAFFE, J.S.C.