United States District Court, S.D. New York
March 29, 2004.
HELEN A. SALICHS, Plaintiff, -against- MICHELE D. TORTORELLI, Defendant
The opinion of the court was delivered by: DEBORAH BATTS, District Judge
PARTIAL ADOPTION OF REPORT AND RECOMMENDATION
On October 8, 2002, Magistrate Judge Theodore H. Katz issued a Report
and Recommendation (the "Report") recommending that the Defendant's
motion to dismiss the Complaint be granted. See 28 U.S.C. § 636(b)(1)(C);
Local Civil Rule 72.1(d). Plaintiff filed timely written Objections
("Objections"), to which Defendant has responded.
28 U.S.C. § 636 (b)(1)(C) requires the Court to make a "de novo
determination of those portions of the report or specified proposed
findings or recommendations to which objection is made." However, where
no timely objection has been made, "a district court need only satisfy
itself that there is no clear error on the face of the record." Nelson
v. Smith, 618 F. Supp. 1186, 1189 (S.D.N.Y. 1985). After conducting a de
novo review, the Court may accept, reject, or modify, in whole or in
part, the findings or recommendations made by the Magistrate.
28 U.S.C. § 636 (b)(1)(C); see also Local Civil Rule 72.1(d).
The Report contained findings of fact by the Magistrate Judge and also
laid out the procedural background of the case. The Court does not adopt
the Report's factual recitation in toto. Indeed, the Plaintiff in her
Objections takes issue with a number of the Report's factual
determinations. As addressed below, the Court adopts the facts as set
forth by the Magistrate Judge in the Report except those few instances,
which upon examination by this Court were made erroneously. Any of the
Report's factual findings, therefore, not specifically contradicted in
the ensuing discussion, should be construed as the findings of this
Lastly, while pro se are normally accorded more leniency in the
drafting of their papers, see Tapia-Ortiz v. Doe, 171 F.3d 150, 151 (2d
Cir. 1999)(citations omitted), the Court need not do so when the pro se
plaintiff is a licensed attorney. See Harbulak v. Suffolk County,
654 F.2d 194, 198 (2d Cir. 1981)(holding that plaintiff "is a practicing
attorney and, therefore, cannot claim the special consideration which
courts customarily grant to pro se parties").
I. Plaintiff's Factual Objections
Salichs raises numerous objections to the facts as found by the
Magistrate Judge in the Report.*fn1
Plaintiff argues that the Report improperly relied on and considered
various documents in his factual recitation. Rule 12(b)(6) of the Federal
Rules of Civil Procedure requires that where "matters outside the
pleading are presented to and not excluded by the court, the motion shall
be treated as one for summary judgment and disposed of as provided in
Rule 56, and all parties shall be given reasonable opportunity to present
all material made pertinent to such a motion by Rule 56." Generally, mere
attachment of affidavits or exhibits to a defendant's papers is not
sufficient to require conversion to a motion for summary judgment. Amaker
v. Weiner, 179 F.3d 48, 50 (2d Cir. 1999) ("[R]eversal for lack of
conversion is not required unless there is reason to believe that the
extrinsic evidence actually affected the district court's decision and
thus was not at least implicitly excluded.").
Plaintiff claims that the Magistrate Judge examined and utilized
documents extrinsic to her Complaint, thereby converting Defendant's
motion into one for summary judgment without providing Plaintiff notice
or a reasonable opportunity to present pertinent evidence, as required by
Rule 12(b)(6). (Pl. Obj. at 10.) Specifically, Plaintiff points to 1) a
of the signed Settlement Agreement between Plaintiff and her ex-husband
submitted in Defendant's moving papers; 2) Defendant's Affidavit, also
attached thereto; and 3) decisions of the First Department in subsequent
proceedings between Plaintiff and her ex-husband in state court.*fn2
(Id. at 11.)
The Second Circuit, however, has allowed courts to review documents
extraneous to the complaint on a motion to dismiss. Chambers v. Time
Warner, 282 F.3d 147 (2d Cir. 2002). Courts should look to "a plaintiff's
reliance on the terms and effect of a document in drafting the complaint"
as "a necessary prerequisite to the court's consideration of the document
on a dismissal motion." Id. at 153. Where a plaintiff relies upon a
document of undisputed authenticity, "a court may consider `documents
attached to the complaint as an exhibit or incorporated in it by
reference . . . matters of which judicial notice may be taken, or . . .
documents either in plaintiffs' possession or of which plaintiff's had
knowledge and relied on in bringing suit.'" Id. (quoting Brass v.
American Film Technologies, Inc., 987 F.2d 142, 150 (2d Cir. 1993)). "To
incorporated by reference, the Complaint must make a clear, definite and
substantial reference to the documents." Thomas v. Westchester County
Health Care Corp., 232 F. Supp.2d 273, 275 (S.D.N.Y. 2002). Even where
documents are not explicitly incorporated, a court may consider them if
they are integral to the complaint. Id.; Int'l Audiotext Network, Inc. v.
American Tel, and Tel. Co. 62 F.3d 69, 72 (2d Cir. 1995) (Court may
consider commercial agreement not incorporated by reference because it is
"integral" to complaint relying on its terms and effect); Cortec
Industries, Inc. v. Sum Holding L.P., 949 F.2d 42, 47 (2d Cir. 1991)
(holding that a plaintiff may not avoid consideration of document
integral to his complaint by failing to attach or incorporate it by
reference and that a defendant may produce the document when moving to
In his Report, Judge Katz concluded that the Settlement Agreement is
appropriate for consideration in rendering his recommendation to this
Court. Plaintiff objects to any consideration of the Settlement
Agreement. She urges that review of the Settlement Agreement is
unnecessary because its terms are not in dispute. (Pl. Obj. at 12-13.)
The argument misses the mark. That the terms of the Agreement are not in
dispute is simply not material to whether this Court may consider a
document when ruling on a motion to dismiss.
Plaintiff also argues that her references to the Settlement Agreement
constitute "mere discussion," and do not rise to the level of
incorporation by reference. (Id.) In her Complaint, after asserting that
Defendant recommended she settle the divorce action (Compl. ¶ 23),
Plaintiff states that she "decided to follow her advice and reach an
agreement" with her husband based on Defendant's then-unknown purported
misrepresentations. (Id. ¶ 25.) The Complaint then specifies the
relevant provisions of the Agreement:
On or about April 15, 1998 plaintiff and Mr. James
entered into a settlement agreement which provided,
among other things, that plaintiff would have physical
custody of their child Alexandra and that plaintiff
and Mr. James would share legal custody of Alexandra
with respect to education, religion, and medical
treatment. Mr. James would have visitation every other
weekend, one afternoon a week and certain holidays.
(Id. ¶ 26.)
In the Court's view, Plaintiff's averments constitute a clear, definite
and substantial reference to the Agreement.
More importantly, Plaintiff's allegations rely on the "terms and
effects" of the Settlement Agreement in framing the Complaint. Plaintiff
is, after all, alleging that Defendant's misrepresentations caused her to
enter into a Settlement Agreement, which awarded her less than sole
physical and legal custody of her daughter, thereby injuring her by
subsequent litigation with her ex-husband. Accordingly, this Court
finds the Settlement Agreement may be examined and utilized in deciding a
motion to dismiss under Rule 12(b)(6).*fn3
As to Defendant's Affidavit, the Report does not expressly address the
propriety of considering such a document. On a Rule 12(b)(6) motion to
dismiss, a defendant's affidavit cannot be considered, and the Court
specifically excludes it. Kopec v. Coughlin, 922 F.2d 152, 155 (2d Cir.
1991). The Court has thoroughly scrutinized the Report and finds the only
one passing reference to Defendant's Affidavit on page 3 of the Report.
Nevertheless, the Court does not adopt the Report's allusion to
Defendant's Affidavit and has examined the Report, the Complaint, and
other documents without relying on the Affidavit.
Lastly, Plaintiff suggests that the Report also improperly considered
two opinions of the First Department. (Pl. Obj. at 8.) Because it is a
public record, Judge Katz implicitly granted Defendant's request that he
take judicial notice of the
decision in Salichs v. James, 708 N.Y.S.2d 385 (N.Y. A.D. 1st Dep't
2000), which ordered a stay of relocation of Plaintiff's daughter. See
Report at 3, 11-13 (discussing Salichs). The Magistrate Judge did not
expressly address the propriety of considering a later 2002 state court
A court may not take factual findings in state court proceedings for
the truth of the matter asserted; instead, the scope of judicial notice of
New York proceedings is limited to the fact of such litigation, related
filings, and any act of the court. See LaFleur v. Whitman, 300 F.3d 256,
267 n.1 (2d Cir. 2002)(holding that an Article 78 proceeding and the
state court record of such a proceeding could be judicially
Plaintiff objects that Judge Katz improperly took judicial notice of
findings of fact set forth in the opinions of these New York
proceedings. (Pl. Obj at 8-9, 12.) Plaintiff is correct in that the Report
should only have taken the fact of the litigation into account and any
acts of the state court. Accordingly, the Court takes judicial notice of
the First Department's 2000 order in Salichs v. James, so far as it
denied Plaintiff's permission to relocate and granted her ex-husband's
motion to stay relocation. 708 N.Y.S.2d at 385. Those parts in the Report
that specifically reference facts contained in the
decision are not adopted by this Court and have not been considered
in the determination of this Motion.
II. Plaintiff's Legal Objections
A. Legal Malpractice Claim
1. Defendant's Alleged Misrepresentations
In her Objections, Plaintiff takes issue with the Magistrate Judge's
conclusion that her legal malpractice claim should be dismissed. As
already noted, the Magistrate Judge should not have included the
substance and factual findings of Salichs v. James in his discussion of
this claim. The Court accordingly does not adopt the portion of the
Report analyzing the malpractice claim and conducts its own analysis.
Under New York law, the elements of a legal malpractice claim are: "(1)
a duty, (2) a breach of the duty, and (3) proof that the actual damages
were proximately caused by the breach of the duty." Ocean Ships, Inc. v.
Sfiles, 315 F.3d 111, 117 (2d Cir. 2002)(citations omitted). To plead
negligence, a plaintiff must allege that the attorney failed to exercise
the degree of care, skill and knowledge commonly exercised by members of
the profession. See McCoy v. Feinman, 99 N.Y.2d 295, 302 (2002).
[i]n order to survive dismissal, the complaint must
show that but for the counsel's alleged malpractice,
the plaintiff would not have sustained some actual,
ascertainable damages, so that a failure to establish
proximate cause requires dismissal, regardless
of whether negligence is established.
Pellegrino v. File, 738 N.Y.S.2d 320, 323 (N.Y. 1st Dep't)(citations
omitted), lv denied, 98 N.Y.2d 606 (2002). The Court agrees with
Plaintiff that the Complaint satisfies the first two elements.
Plaintiff's view of her precise injuries and damages, however, is not
always clear. For instance, in her Complaint, Plaintiff first alleges
that because she "agreed to enter into [the Settlement Agreement] based
upon the misrepresentations . . . fraudulently made by the defendant,
plaintiff lost the full custody rights over her daughter" (Compl. ¶ 27),
suggesting that she seeks redress for having to share custody over her
daughter's "education, religion, and medical treatment." (Id. ¶ 26).
Later in the Complaint she alleges that "(a)s a result of defendant's
conduct and misrepresentations, plaintiff has lost custody over her
daughter and has incurred in [sic] substantial sums of money as a result
of the unnecessary litigation." (Compl. at ¶ 39.) From the Complaint, it
appears that the injury is either lost custody or the endless litigation.
Her Objections only muddle her position. At one point, she claims that
the Settlement Agreement "deprived her of full legal custody of her
daughter," (Pl. Obj. at 14), but then later states the Settlement
Agreement required her to engage in
mediation and litigation. (Id.) Then, she goes on to state that her
"injury is clear: Defendant's actions clearly interfered with Plaintiff's
right to seek full custody of her daughter." (Id. at 15 (emphasis
added).) From her Objections, it appears that the injury is either lost
custody, the endless litigation, or the right to seek full custody.
New York law requires not only that a complaint plead actual,
ascertainable damages, but also that those damages be monetary. Galu v.
Attias, 923 F. Supp. 590, 597 (S.D.N.Y. 1996) ("A plaintiff suing in
malpractice [under New York law] can recover only pecuniary loss but not
for mental or psychological suffering.")(citations omitted); Wilson v.
City of New York, 743 N.Y.S.2d 30, 32 (2002) (holding that a claim for
legal malpractice does not afford recovery for items of damages other
than pecuniary loss). That Plaintiff was not awarded full legal custody
and was required to "share decision making with respect to major
decisions with respect to [her daughter's] education, medical and
therapeutic treatment, and religion" does not represent pecuniary loss.
(Settlement Agreement at 14.) Accordingly, lost custody cannot be an
adequate basis for a malpractice claim.
Plaintiff contends that Defendant's alleged "interference" with her
right to seek full custody is a compensable injury. She bases her
argument on a single case. Pickle v. Page,
252 N.Y. 474, 482-483 (1930), in which the Court of Appeals allowed a
parent to seek monetary recovery for "wounded feelings" from one who
participates in physically abducting a child. However, Pickle v. Page is
clearly inapposite as Plaintiff's daughter was not physically abducted.
In fact, the Settlement Agreement provided that Plaintiff retain physical
custody, (Settlement Agreement at 9), and she has nowhere alleged that
but for Defendant's misconduct the girl's father would have been denied
visitation. The right to seek full custody is therefore not a cognizable
injury under state law.
The remaining possibility for a claim of legal malpractice is the
"endless litigation" in which Plaintiff was allegedly forced to engage
after having agreed to the Settlement Agreement. Such litigation,
according to Plaintiff's papers, included "the reversal on appeal of the
order allowing the relocation [of Plaintiff and her daughter to Puerto
Rico], the custody issues that have been before the Courts of the State
of New York . . . and having to face her ex-husband in two forums in New
York and Puerto Rico." (Pl. Memo, of Law in Oppos. at 14.) She claims
that the Court should not look to the viability of whether she would have
prevailed on her relocation or custody issues, but that she had to
The viability of Plaintiff's claims regarding relocation and custody
are not at issue, and the Court recognizes that she
did in fact have to litigate various issues, including relocation and
custody, after entering the Settlement Agreement. However, even had she
prevailed at trial and gained full custody of her minor daughter, the
"endless litigation" of which she speaks would still have transpired.
Indeed, Plaintiff herself acknowledges in her moving papers that
"[n]owhere does the Complaint state that Plaintiff should have relocated
without the Court's permission or her ex-husband's consent if she had
sole physical and legal custody. . . ." (Id. at 14.) This realization by
Plaintiff, a New York attorney, may stem from the fact that any motion to
stay relocation would be based on her ex-husband's visitation rights,
which New York Courts strongly protect. Weiss v. Weiss, 52 N.Y.2d 170,
175 (N.Y. 1981) (affirming injunction preventing relocation of child);
Matter of Ervin R. v. Phina R., 717 N.Y.S. 849, 856 (N.Y. Fam. Ct. 2000)
(absent exceptional circumstances, non-custodial parent must have
reasonable visitation privileges). Indeed, the Court of Appeals has
stated that in evaluating a relocation request, "the impact of the move
on the relationship between the child and the noncustodial parent will
remain a central concern." Tropea v. Tropea, 642 N.Y.S.2d 575, 580
(1996)(emphasis added). Furthermore, denial of visitation to a
non-custodial parent is considered a drastic remedy, "ordered only in the
presence of compelling reasons and substantial evidence that such
visitations are detrimental to the child's welfare." Sheavlier v.
Melendrez, 744 N.Y.S.2d 264, 266 (3d Dep't 2002). Plaintiff has not
alleged that her ex-husband would have been denied visitation or that his
parental rights would have been terminated at trial. Irrespective of
Defendant's conduct, he therefore would have been able to move in state
court to prevent the relocation of their daughter and Plaintiff would
have incurred the expense of litigating the matter.
Additionally, custody decrees are not accorded the full res judicata
effect given to other judgments under New York law, but are subject to
modification. N.Y. Dom. Rel. Law §§ 70, 240 (2003) (both statutes provide
that "[i]n all cases there shall be no prima facie right to the custody
of the child in either parent"); Friederwitzer v. Friederwitzer,
55 N.Y.2d 89, 93 (1982) (legislature intended § 70 and § 240 to apply to
both initial custody decrees and modifications); Thomas v. New York City,
814 F. Supp. 1139, 1148 (E.D.N.Y. 1993) (custody decisions not accorded
res judicata because circumstances change with time)(citations omitted).
Had Plaintiff been awarded sole custody, the court's initial decree would
not have represented an irrevocable determination of custody of her
daughter, and she would not have been protected from the prospect of
future litigation with her ex-husband.
The costs resulting from the "endless litigation" over relocation or
custody, then, while compensable, were not proximately caused by the
Defendant's alleged malpractice. Accordingly, Plaintiff cannot prevail on
the "endless litigation" injury either.
Based on the allegations Plaintiff has set forth, no set of facts would
survive a motion to dismiss because either the injuries alleged are not
compensible under New York law or proximate cause is lacking. The legal
malpractice claim stemming from Defendant's alleged misrepresentations
should be dismissed.
2. The confession of judgment.
Plaintiff objects to the Report's recommendation of dismissal
concerning the legal malpractice claim, resulting from her signing of a
confession of judgment. She points out that the Complaint does, in fact,
allege that she made payments pursuant to the confession of judgment and
has as a result suffered economic damages. The Report, however,
explicitly notes that she "made payments on her outstanding legal bills."
Report at 19.
Reviewing this section of the Report de novo, the Court agrees with
Magistrate Katz' recommendation. Even if Defendant disregarded the rule
of the court and in doing so breached a duty towards Plaintiff, there is
no set of facts under which Plaintiff suffered damages proximately caused
by that breach.
Plaintiff as much as concedes that the confession of judgment was
for the amount she then owed to Defendant. (Compl. ¶¶ 14, 19-21.) The
Complaint does not allege any dispute over the veracity of the amount
billed, nor does it allege, as Judge Katz noted, that defendant attempted
to enforce the judgment. Plaintiff fails to allege damages other than
having to pay monies she owed.*fn4 Accordingly, Plaintiff here fails to
state a claim upon which relief can be granted.
B. Plaintiff's Breach of Contract Claim
Plaintiff objects to the dismissal of her breach of contract claim,
arguing that it is not merely duplicative of the malpractice claim.
However, she merely repeats accusations set forth in the claim of legal
malpractice and does not explain how her claim is not duplicative. After
a de novo review of the facts and law, the Court agrees the claim should
be dismissed for the reasons stated in the Report.
C. Plaintiff's Fraud Claim
Plaintiff has objected to the Report's recommendation that the fraud
claim be dismissed as duplicative of the legal malpractice claim, merely
pointing out the "egregious conduct" of the Defendant. (Pl. Obj. at 16.)
Without any much-needed elaboration, the Objection appears meritless
since the fraud claim like her breach of contract claim is duplicative of
the legal malpractice cause of action. After a de novo review and for the
reasons set forth in the Report, this claim should be dismissed.*fn5
Accordingly, having disposed of Plaintiff's Objections to the
Magistrate's Report and Recommendation of October 8, 2002, and it is
hereby ORDERED AND ADJUDGED as follows:
1. The Court adopts the facts of the Report not
inconsistent with this Order.