Long v. De Feis

Background

Rose Ramey Long, individually and doing business as Rose Long Fine Art, sued De Feis O’Connell & Rose, P.C. for attorney malpractice. The complaint asserted negligence, misrepresentation, gross negligence, and punitive damages. Long had retained the firm to represent her in an earlier lawsuit brought by Degas Sculpture Project Ltd. and Modernism Fine Art, Inc. concerning the loss of a bronze Degas sculpture called The Little Dancer, Age Fourteen.

The earlier lawsuit resulted in a jury award of $396,000 against Long for breach of contract, plus attorney’s fees. The jury also awarded Long $50,000 on her counterclaims against Walter Maibaum and Carol Conn. In this case, Long alleged that the firm mishandled her defense by failing to use information about Lucien Brugnara’s conduct, failing to join Brugnara or assert an intentional-interference-with-contract claim, failing to request a trial continuance, and failing to investigate certain facts and witnesses.

De Feis O’Connell moved to dismiss under Federal Rule of Civil Procedure 12(b)(6), which permits dismissal when a complaint does not state a legally sufficient claim. Long moved to amend her first amended complaint to add a malpractice claim based on the firm’s failure to assert an impossibility-of-performance defense in the earlier lawsuit.

Choice of law

Because the case was based on diversity jurisdiction, the court applied New York’s choice-of-law rules. For the tort claims, those rules use an “interest analysis,” meaning the court applies the law of the jurisdiction with the greatest interest in the dispute. The court concluded that New York had the greatest interest because the firm was located in New York, its lawyers were admitted there, and the earlier trial took place there. The court therefore applied New York law.

Motion to dismiss

Under New York law, an attorney-malpractice claim requires allegations of attorney negligence, causation, and actual damages. The plaintiff must plausibly allege that, without the alleged malpractice, she would have obtained a better result in the earlier case or avoided an actual, identifiable loss. The court described this as requiring a “lawsuit within a lawsuit.”

The court rejected each alleged basis for malpractice. First, Long did not explain how being told that Brugnara’s conduct was relevant would have changed the outcome of the earlier case. Second, she did not plausibly allege that an intentional-interference-with-contract claim would have succeeded because her allegations indicated that Brugnara caused Long’s own breach, rather than procuring a third party’s breach as required for that claim. The court also concluded that Brugnara’s criminal conviction did not establish all the required elements of intentional interference.

Third, Long did not explain how a continuance would have changed her testimony or the outcome of the trial. Fourth, she did not show a sufficiently close connection between the firm’s alleged failure to investigate facts about the artwork and witnesses and the result of the earlier lawsuit. The court held that Long therefore failed to state legal-malpractice claims in Counts 3, 4, and 9, which it dismissed.

The court also ruled that the misrepresentation claims in Counts 1 and 2 duplicated the malpractice claims because they relied on the same allegations and sought no separate damages. Count 5, alleging gross negligence based on the same conduct, was also duplicative. Count 6 failed because violations of New York’s professional-conduct rules do not themselves create a private claim. Count 8 failed because punitive damages are not an independent cause of action.

The court declined to consider evidence outside the pleadings and did not convert the dismissal motion into a motion for summary judgment. It concluded that the complaint did not support a claim for relief and granted De Feis O’Connell’s motion to dismiss.

Motion to amend

Long’s proposed amendment would have added a malpractice claim alleging that the firm should have argued that California law applied to the earlier contract dispute and should have asserted impossibility of performance under New York law.

The court found the proposed choice-of-law theory futile. The pleadings and trial record indicated that the artwork was in a Manhattan warehouse when the contract was made, while Long did not allege where the contract was negotiated or executed or the domicile of the Underlying Plaintiffs. Those allegations did not show that it was unreasonable for the firm not to argue for California law.

The court also rejected the proposed impossibility theory. Under New York law, impossibility generally requires an objectively impossible performance caused by an unanticipated event that could not have been foreseen or addressed in the contract. The court concluded that Brugnara’s refusal to pay was a foreseeable financial or contractual risk, not the type of unforeseen event that would make performance legally impossible. The firm’s decision not to assert the defense was therefore a reasonable legal judgment rather than malpractice.

Disposition

The court granted De Feis O’Connell’s motion to dismiss and denied Long’s motion for leave to amend. The clerk was directed to terminate the relevant motions and close the case. Judge Analisa Torres signed the order on January 26, 2021.