Sohns and Tandet in June. Plaintiff's counsel does not claim that objections to an account must be in writing, and Tandet claims that throughout the period he repeatedly made oral objections to the amounts of Plaintiff's bills. Accordingly, genuine issues of material fact exist, and Plaintiff's motion is denied.
Motion for Judgment on the Pleadings :
An action for damages for legal malpractice requires proof of three elements: (a) a duty; (b) a breach of the duty; and (c) proof that actual damages were proximately caused by the breach of the duty. A prima facie case of legal malpractice requires a showing that the attorney failed to exercise that degree of skill commonly exercised by an ordinary member of the legal community, and that the client incurred damages as a direct result of the attorney's actions. Marshall v. Nacht, 172 A.D.2d 727, 569 N.Y.S.2d 113, 114 (App. Div. 1991).
Little Prince's and Tandet's counterclaims against Sohns are based on allegations by Tandet that Sohns was requested to and did not conduct a due diligence investigation of the Control Group, its participants, and their past business dealings prior to closing the Share Exchange Agreement entered into on December 31, 1991; that prior to closing Tandet learned of SEC charges filed against a corporation owned by two members of the Control Group, which information Sohns did not investigate stating that "there was no time"; and that Sohns erroneously told Tandet that the Share Exchange Agreement with the Control Group had to be consummated on December 31, 1991 due the signing of a preliminary agreement on December 21, 1990.
Little Prince and Tandet claim such actions constituted malpractice which harmed Little Prince because, but for Sohns's negligence and erroneous advice, Little Prince would not have concluded the Share Exchange Agreement with the Control Group and would not have foregone other merger opportunities. They also charge that during the first half of 1991 Sohns negligently failed to make the required filings with the SEC on behalf of Little Prince and thereby endangered Little Prince's NASDAQ listing.
Defendants Little Prince and Tandet allege, although not with the desired precision, that as a consequence of Sohns's alleged negligence and erroneous advice Little Prince incurred substantial legal expenses in connection with the recision of the Share Exchange Agreement and that "the actions of Sohns further caused Little Prince and Tandet to lose other merger opportunities." Answer, Counterclaim and Cross-Claim P57. Tandet and Little Prince claim that the recision of the Share Exchange Agreement was necessary "so that Little Prince could file its 10-K and 10-Q forms on its own" and thus maintain its NASDAQ listing. Answer, Counterclaim and Cross-Claim P46.
Because Little Prince and Tandet allege that Sohns breached his duty to Little Prince in the various manners alleged and that Little Prince incurred resultant damages, such allegations constitute a cause of action for Little Prince, which is alleged to have had a lawyer-client relationship with Sohns. The allegations are insufficient, however, as to Tandet, with whom no such relationship is alleged to have existed. Compusort, Inc. v. Goldberg, 606 F. Supp. 456, 457 (S.D.N.Y. 1985). Accordingly, Sohns's motion for judgment on the pleadings dismissing the malpractice counterclaims is granted with respect to Tandet's counterclaim and denied with respect to Little Prince's counterclaim.
For the foregoing reasons, Plaintiff's motion for summary judgment is denied, and Plaintiff's motion for judgment on the pleadings dismissing the counterclaim is granted as to Tandet and denied as to Little Prince. Counsel are to attend a pretrial conference on May 29, 1992, at 9:00 a.m. in courtroom 302.
IT IS SO ORDERED.
Dated: New York, New York,
May 18, 1992
ROBERT P. PATTERSON, JR.
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