FKB’s Spencer A. Richards and David P. Furman obtained a pre-answer dismissal of a legal malpractice lawsuit on behalf of a well-respected medical malpractice plaintiff’s attorney. FKB’s client represented Plaintiff in an underlying medical malpractice action and negotiated a tentative settlement agreement on behalf of the plaintiff. However, plaintiff refused to execute the release and commenced an action against his former attorney, and the attorneys for the doctors in the underlying medical malpractice action alleging that FKB’s client should have sought recovery for battery against the doctors and was aware that the underlying doctors forged documents. In the Complaint, plaintiff alleged twenty (20) causes of action sounding in Judiciary Law § 487, aiding and abetting fraud, breach of fiduciary duty, conversion, intentional infliction of emotional distress, and conspiracy.
In obtaining the pre-answer dismissal of the Complaint, FKB successfully argued that plaintiff’s violation of Judiciary Law §487 claims failed to state a claim because Plaintiff failed to plead the requisite intent for violation under the statute. The Court (Hon. Justice Rivera) also agreed with FKB’s argument that the legal malpractice cause of action fails to state a claim because the Retainer Agreement between plaintiff and FKB’s client conclusively establishes that FKB’s client was not retained to commence a battery action in lieu of a medical malpractice action. Finally, the Court agreed with FKB’s argument that plaintiff’s breach of fiduciary duty, fraud, intentional infliction of emotional distress, conspiracy and conversion claims fail to state a claim against FKB’s client because the allegations of misconduct are all conclusory.