Waggoner v. Caruso — 14 N.Y.3d 874

Majority

p. 874

[929 NE2d 396, 903 NYS2d 333]

J. Virgil Waggoner et al., Appellants, v Kenneth A. Caruso et al., Respondents.

Decided May 11, 2010

p. 875

APPEARANCES OF COUNSEL

Lally Mahon & Rooney LLP, New York City (James J. Mahon of counsel), for appellants.

Patterson Belknap Webb & Tyler, LLP, New York City (Frederick B. Warder III and Rosanne E. Felicello of counsel), for Kenneth A. Caruso, respondent.

Pillsbury Winthrop Shaw Pittman LLP, New York City (E. Leo Milonas and David G. Keyko of counsel), respondent pro se.

OPINION OF THE COURT

Memorandum.

The order of the Appellate Division should be affirmed, with costs, and the certified question not answered upon the ground that it is unnecessary.

The Appellate Division properly held that plaintiffs J. Virgil Waggoner and J.VW. Investment Ltd. of Dominica did not state a claim for legal malpractice insofar as they failed to allege that, but for defendants’ alleged malpractice, they would have successfully recovered the $10 million investment in an underlying proceeding (see Davis v Klein, 88 NY2d 1008 , 1009-1010 [1996]). The court also properly dismissed plaintiffs’ claim in this case for breach of fiduciary duty as duplicative of the claim for legal malpractice.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, etc.