Plaintiff and nonparty Michael Brooke hired defendants to represent them with respect to an agreement between them (and later superseding versions of the agreement) that defendants would draft. Plaintiff and Brooke paid defendants a $2,500 flat fee for this representation. Plaintiff now contends that defendants representation of him was negligent and disloyal, and that as a result of this asserted malpractice, he suffered damages of at least $750,000. Defendant moves to dismiss under CPLR 3211. This court agrees that the action should be dismissed.
1. Plaintiff alleges that defendants representation fell below professional standards of competence because they should have provided him more detailed background/contextual information to help him understand his potential exposure under the agreement and amended agreements (in terms of the likely amount of legal fees that he would be committing to pay). But plaintiffs complaint never alleges that providing him this kind of information and counseling was within the scope of defendants representation of him. Nor does the complaint allege that plaintiff sought this information from defendants and was refused.
Moreover, every iteration of the agreement that plaintiff signed contains a provision stating expressly that Brooke and Streit each had an opportunity to consult with an independent attorney of his choosing to discuss the subject matter of the agreement. (See e.g. NYSCEF No. 15 at 4 § 2 [original agreement]; NYSCEF No. 16 at 5-6 § 4 [first amended agreement.) Each iteration of the agreement also contains a no-contra-proferentem provision stating that the agreement is the product of arms length negotiations among parties knowledgeable of its subject matter who have had the opportunity to consult counsel concerning the terms and conditions of this Agreement prior to its execution. (See e.g. NYSCEF No. 15 at 7 § 8; NYSCEF No. 17 at 9 § 10 [second amended agreement].)
Plaintiff—who is, based on the allegations of the complaint, an experienced, sophisticated businessman—thus fails to allege sufficiently either that defendants negligently represented him within the scope of the representation or that any alleged negligence proximately caused him the damages he claims to have suffered.
2. Plaintiff also contends that defendants unfairly favored Brookes interest over his own, in breach of their duty of loyalty to him as their client. But defendants engagement letter, and each iteration of the agreement that defendants drafted, included an express waiver of any conflict of interest that might arise either from the firms joint representation of plaintiff and Brooke in this action, or from the firms representation of Brooke against Streit in past litigation between them.
Additionally, plaintiff does not allege that he ever objected to a provision in drafts of the original agreements or superseding amendments, much less that an objection (or request for changes) was rejected. And again, plaintiff expressly acknowledged, in each of five different versions of the agreement, that he had an opportunity to consult separate, independent counsel before entering into the agreement.
Plaintiff thus fails to show a proximate connection between any alleged disloyalty and the damages that he claims to have suffered as a result of having entered into these agreements.
Accordingly, it is
ORDERED that defendants motion to dismiss plaintiffs claims against them is granted, and the complaint is dismissed, with costs and disbursements as taxed by the Clerk upon the submission of an appropriate bill of costs; and it is further
ORDERED that defendants serve a copy of this order with notice of its entry on plaintiff and on the office of the County Clerk by the means set forth in the courts e-filing protocol, available on the e-filing page of the courts website, https://ww2.nycourts.gov/ courts/1jd/supctmanh/E-Filing.shtml), which shall enter judgment accordingly.
DATE 5/9/2024
Gerald Lebovits, J.