FKB successfully obtained a pre-answer dismissal on a motion to dismiss from Justice Jeffrey K. Oing in the Commercial Division of the Supreme Court, New York County.

FKB’s client represented the opposing parties in two related commercial litigations in which Plaintiffs were involved.  Plaintiffs claimed breach of fiduciary duty, breach of contract, tortious interference with an economic advantage, unjust enrichment, constructive trust, and a Judiciary Law § 487 claim stemming from Plaintiffs’ assertion that FKB’s client had a conflict of interest in representing the corporation at issue in a related litigation, and, as a result, breached his fiduciary duty and negatively interfered with its business and contractual relationships.

FKB’s pre-answer motion to dismiss the Complaint pursuant to CPLR §3211 argued that Plaintiffs had failed to state a claim in that FKB’s insured had no fiduciary relationship with the Plaintiffs and that decisions in the related litigation precluded the claims herein.  FKB also argued that Plaintiffs did not have standing to bring this action and that the action was subject to dismissal under CPLR §3211(a)(4) as duplicative litigation.  In addition to opposing FKB’s motion, Plaintiffs moved to transfer venue to New York County.

In ruling from the bench, Justice Oing initially granted dismissal of all claims without prejudice which would have enabled Plaintiffs to bring the claims again against FKB’s client in the related litigation.  However, during arguments, FKB managed to convince the Court that the Plaintiffs could not state any cause of action against FKB’s client as a matter of law and that to allow Plaintiffs another “bite at the apple” would open the door for frivolous litigation against attorneys who are simply advocating on their client’s behalf.  The Court agreed and dismissed the entire action with respect to FKB’s client with prejudice.

If you have any questions about this decision, or the defense of attorneys in general, please contact Andrew R. Jones or Rachel Aghassi.