Long Island Med. Anesthesiology, P.C. v. Rosenberg Fortuna & Laitman, LLP

191 A.D.3d 864

142 N.Y.S.3d 194

LONG ISLAND MEDICAL ANESTHESIOLOGY, P.C., et al., appellants,

v.ROSENBERG FORTUNA & LAITMAN, LLP, et al., respondents.

2017-07769

Index No. 600200/17

Supreme Court, Appellate Division, Second Department, New York.

Argued—December 1, 2020

February 17, 2021

Law Offices of Paul D. Stone, P.C., Tarrytown, NY, for appellants.

Catalano Gallardo & Petropoulos, LLP, Jericho, N.Y. (Matthew K. Flanagan of counsel), for respondents.

MARK C. DILLON, J.P., SYLVIA O. HINDS–RADIX, ROBERT J. MILLER, LINDA CHRISTOPHER, JJ.

DECISION & ORDER

In an action, inter alia, to recover damages for tortious interference with a contract, the plaintiffs appeal from an order of the Supreme Court, Nassau County (Timothy S. Driscoll, J.), entered June 15, 2017. The order granted the defendants' motion pursuant to CPLR 3211(a) to dismiss the complaint and denied the plaintiffs' cross motion pursuant to CPLR 3211(e) for leave to amend the complaint and pursuant to CPLR 3211(d) for leave to conduct disclosure.

ORDERED that the order is affirmed, with costs.

In 1998, the plaintiff Long Island Medical Anesthesiology, P.C. (hereinafter LIMA), which was wholly-owned by the plaintiff Richard Gabay, contracted with Long Island Medical & Gastroenterology Associates, P.C. (hereinafter LIMGA), a medical practice owned by Jay G. Merker, Stewart A. Robbins, and Nathan D. Schulman (hereinafter collectively the LIMGA shareholders), to be the exclusive provider of anesthesiology services for LIMGA (hereinafter the exclusivity agreement). In other actions not presently before this Court, LIMA and Gabay (hereinafter together the plaintiffs) have alleged, inter alia, that the LIMGA shareholders breached the exclusivity agreement.

In the present action, the plaintiffs assert that in May 2014, the LIMGA shareholders engaged the services of the defendant Rosenberg Fortuna & Laitman, LLP, in the persons of the defendants David Rosenberg and Brett Zinner (hereinafter collectively RFL), to facilitate transactions resulting in the replacement of the plaintiffs as the exclusive provider of anesthesiology services for LIMGA and, ultimately, to seize without compensation Gabay's shares in Day Op of North Nassau, Inc. (hereinafter Day Op). RFL moved pursuant to CPLR 3211(a)(3) and (7) to dismiss the complaint in this action. The plaintiffs opposed the motion, and cross-moved pursuant to CPLR 3211(e) for leave to amend the complaint and pursuant to CPLR 3211(d) for leave to conduct disclosure. The Supreme Court granted RFL's motion and denied the plaintiffs' cross motion. The plaintiffs appeal.

As the Supreme Court observed in the order on appeal, it is not clear what claim the plaintiffs intended to assert in their first cause of action, nor did their proposed amended complaint, which labeled the cause of action "Intentional Wrongful Interference and Conduct," clarify their claim. The court reasonably read the first cause of action as asserting tortious interference with contractual relations or aiding and abetting tortious interference with contractual relations; fraud or aiding and abetting fraud; aiding and abetting conversion; violation of the Rules of Professional Responsibility; and/or conspiracy. The second and third causes of action asserted claims for legal malpractice and violation of Judiciary Law § 487, respectively.

As the Supreme Court noted, civil conspiracy is not recognized as a civil cause of action in New York (see Notaro v. Performance Team, 136 A.D.3d 997, 999, 26 N.Y.S.3d 201 ), nor does a violation of the Rules of Professional Responsibility, without more, support either an independent cause of action or a cause of action alleging legal malpractice, even where the alleged violation is a conflict of interest (see Doscher v. Meyer, 177 A.D.3d 697, 699, 112 N.Y.S.3d 237 ; DeStaso v. Condon Resnick, LLP, 90 A.D.3d 809, 814, 936 N.Y.S.2d 51 ). In any case, since RFL's retainer was signed only on behalf of the LIMGA shareholders, not on behalf of any entity in which Gabay or LIMA had a legal interest, RFL did not have a duty to the plaintiffs (see Strujan v. Kaufman & Kahn, LLP, 168 A.D.3d 1114, 1115, 93 N.Y.S.3d 334 ; Betz v. Blatt, 160 A.D.3d 696, 698, 74 N.Y.S.3d 75 ), and the alleged conflict of interest did not arise.

To the extent that the first cause of action asserts either tortious interference with contractual relations and/or aiding and abetting tortious interference with contractual relations, both the documentary evidence and the complaint itself defeat this claim. The plaintiffs allege that the LIMGA shareholders' wrongful acts began in 2009 and culminated in a breach of the exclusivity agreement in March or April of 2014, but the copy of RFL's retainer, which the plaintiffs themselves submitted, establishes that the LIMGA shareholders did not retain RFL until May 2014. Since RFL had not yet been retained at the time of the LIMGA shareholders' alleged wrongful acts, RFL could not have participated in or aided and abetted those actions (see Sayles v. Ferone, 137 A.D.3d 486, 26 N.Y.S.3d 527 ). The same reasoning applies to any claim that RFL aided and abetted fraud (see Betz v. Blatt, 160 A.D.3d at 700, 74 N.Y.S.3d 75 ; Goel v. Ramachandran, 111 A.D.3d 783, 792, 975 N.Y.S.2d 428 ). Furthermore, the complaint is not pleaded with the particularity necessary to sustain a cause of action alleging fraud (see CPLR 3016[b] ; Nabatkhorian v. Nabatkhorian, 127 A.D.3d 1043, 1044, 7 N.Y.S.3d 479 ).

To the extent that the plaintiffs claim that RFL aided and abetted conversion, their claim appears to rest on their allegation that the LIMGA shareholders wrongfully terminated the services of LIMA and Gabay at a special meeting of Day Op held on November 5, 2014, and attempted to seize Gabay's shares in Day Op for no consideration. Although this meeting occurred after RFL was retained, the complaint asserts only that the LIMGA shareholders attempted to seize Gabay's shares, not that they did so. In any event, since an attorney acting in good faith is not...