Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.


United States District Court, S.D. New York

March 31, 2004.

BATYAH LEVI AGRON, Plaintiff, -against -, DOUGLAS W. DUNHAM, ESQ. & ASSOCIATES, Defendant

The opinion of the court was delivered by: LORETTA PRESKA, District Judge

Memorandum Opinion and Order

This case arises out of Douglas W. Dunham, Esq.'s ("Mr. Dunham" or "Defendant") pro bono representation of Plaintiff Batyah Levi Agron ("Ms. Agron" or "Plaintiff") in her action against the Trustees of Columbia University. Ms. Agron filed her action against Columbia in 1988 pro se in the Southern District of New York (the "Original Action"). She asserted discrimination claims under section 504 of the Rehabilitation Act of 1973, 29 U.S.C. § sc § 794, based upon Columbia's rejection of her application for readmission to its School of General Studies. Mr. Dunham became her pro bono attorney in 1992. The Original Action came to trial in August 1999 before the Honorable Thomas P. Griesa, lasting approximately one week. The jury found that Ms. Agron was a handicapped person within the meaning of the Rehabilitation Act, but that she was not "otherwise qualified" for readmission to Columbia. (Declaration Page 2 of Douglas W. Dunham ("Dunham Decl."), sworn to July 3, 2003, Ex. 3 at 1.) Shortly after Judge Griesa, in September 1999, denied the motion for JNOV that Mr. Dunham filed on behalf of Ms. Agron (Dunham Decl. Ex. 3), Mr. Dunham withdrew from his representation of her because he determination that there was no meritorious ground for appeal. Ms. Agron pursued an appeal pro se before the Second Circuit, which denied her motion for appointment of counsel and found that her appeal lacked merit and therefore dismissed it. See Agron v. Trustees of Columbia University, No. 99-9407 (2d Cir. Sept. 1, 2000). Ms. Agron subsequently filed a petition for certiorari to the United States Supreme Court, which was also denied. See Agron v. Trustees of Columbia University, 534 U.S. 932 (2001).

Ms. Agron then brought this suit pro se against Mr. Dunham in August 2002. Her first complaint (which was never served on Mr. Dunham) was dismissed sua sponte by the Honorable Michael Mukasey on the grounds that she had not properly alleged an amount in controversy in excess of $75,000 and that she had not properly pled a claim for legal malpractice. See Agron v. Dunham, No. 02 Civ. 10071, Order at 2-4 (S.D.N.Y. Dec. 19, 2002). Plaintiff has now filed an Amended Complaint against Mr. Dunham, dated February 19, 2003. The Amended Complaint ("Complaint") appears to assert claims for violation of civil rights, legal malpractice and civil conspiracy. Page 3

  By notice of motion dated July 3, 2003, Defendant moved to dismiss the Complaint in its entirety pursuant to Federal Rule of Civil Procedure 12(b)(6).

  Legal Standards

  I. Proceeding Pro Se

  In addressing the Defendant's motion, the Court is mindful that the Plaintiff is proceeding pro se and that her submissions should be judged by a more lenient standard than that accorded to "`formal pleadings drafted by lawyers.'" Hughes v. Rowe, 449 U.S. 5, 9 (1980) (per curiam) (quoting Haines v. Kerner, 404 U.S. 519, 520 (1972)); see also Burgos v. Hopkins, 14 F.3d 787, 790 (2d Cir. 1994) ("We read [the pro se party's] supporting papers liberally, and will interpret them to raise the strongest arguments they suggest."); Hanlin v. Mitchelson, 794 F.2d 834, 838-39 (2d Cir. 1986) (citing Haines, 404 U.S. 519, to support the principle that pro se pleadings are given a liberal construction). Nevertheless, proceeding pro se does not altogether relieve Ms. Agron from the usual pleadings requirements. See Kadosh v. TRW, Inc., No. 91 Civ. 5080, 1994 U.S. Dist. LEXIS 17390, at *16 (S.D.N.Y. Dec. 5, 1994) ("The work product of pro se litigants should be generously and liberally construed, but [the pro se's] failure to allege either specific facts or particular laws that have been violated Page 4 renders his attempt to oppose defendants' motion ineffectual.").

  II. Rule 12(b)(6) Standard

  In deciding a motion to dismiss, I must view the Complaint in the light most favorable to the Plaintiff. Scheuer v. Rhodes, 416 U.S. 232, 237 (1974); Yoder v. Orthomolecular Nutrition Inst., Inc., 751 F.2d 555, 562 (2d Cir. 1985). I must accept as true the well-pleaded factual allegations stated in the Complaint, Zinermon v. Burch, 494 U.S. 113, 118 (1990), and draw all reasonable inferences in favor of the Plaintiff. Scheuer, 416 U.S. at 236; Hertz Corp. v. City of New York, 1 F.3d 121, 125 (2d Cir. 1993). Dismissal is proper only when "it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief." Conley v. Gibson, 355 U.S. 41, 45-46 (1957); accord Cohen v. Koenig, 25 F.3d 1168, 1172 (2d Cir. 1994). In order to avoid dismissal, plaintiff must do more than plead mere "`conclusory allegations or legal conclusions masquerading as factual conclusions.'" Gebhardt v. Allspect, Inc., 96 F. Supp.2d 331, 333 (S.D.N.Y. 2000) (quoting 2 James Wm. Moore, Moore's Federal Practice P12.34[l] [b] (3d ed. 1997)). In construing the Complaint, documents attached to or referenced in the complaint may be considered on a motion to dismiss without converting the motion to dismiss into one for summary judgment. See Taylor v. Vermont Dep't of Educ., 313 F.3d 768, 776 (2d Cir. 2002) (court Page 5 may look to "facts as presented within the four corners of the complaint, to documents attachments to the complaint, or to document incorporated within the complaint by reference"); Hayden v. County of Nassau, 180 F.3d 42, 54 (2d Cir. 1999) (same). Additionally, matters as to which judicial notice may be taken, such as pleadings in other lawsuits and other public records may also be considered on a motion to dismiss. See, e.g., Rothman v. Gregor, 220 F.3d 81, 92 (2d Cir. 2000) (taking judicial notice of pleading in another lawsuit); Clarry v. United States, 891 F. Supp. 105, 109 (E.D.N.Y. 1995) (on motion to dismiss, court "permitted to take judicial notice of matters of public record"), aff'd, 85 F.3d 1041 (2d Cir. 1996).

  III. Discussion

  Although Plaintiff's Complaint is not entirely clear, Plaintiff appears to assert three causes of action — civil rights violations, legal malpractice, and civil conspiracy. Defendant moves to dismiss all three claims for failure to state a legally cognizable claim against him.

  A. Civil Rights

  Plaintiff makes numerous references regarding alleged violations of her civil rights. Plaintiff alleges that Defendant "interfere[d] with her Civil Rights" (Compl. at 2), "den[ied] her equal rights" (Compl. at 3), and violated "her equal protection under the Constitution" (Compl. at 4). Page 6 Plaintiff also purports to involve 42 U.S.C. § 1983 (Compl. at 1).

  The Court of Appeals has held that "[b]ecause the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights [have been violated] must first establish that the challenged conduct constitutes `state action.'" Ciambriello v. County of Nassau, 292 F.3d 307, 323 (2d Cir. 2002) (citations omitted). Similarly, the Court of Appeals has stated that "[a] plaintiff pressing a claim of violation of his constitution rights under § 1983 is . . . required to show state action." Tancredi v. Metropolitan Life Ins. Co., 316 F.3d 308, 312 (2d Cir.), cert. denied, 2003 U.S. LEXIS 4837 (U.S. June 23, 2003).

  It is well-established that as a matter of law a private attorney is not a state actor. See, e.g., Rodriguez v. Weprin, 116 F.3d 62, 65-66 (2d Cir. 1997) (private attorney does not act under color of state law by virtue of his appointment by the court to represent a defendant in a state criminal proceeding); Fine v. City of New York, 529 F.2d 70, 74 (2d Cir. 1975) (private attorney not a state actor); Cunningham v. Fisch, 01 Civ. 1123, 2001 U.S. Dist. LEXIS 17483, at *11 (S.D.N.Y. Oct. 26, 2001) ("`[A] lawyer representing a client is not, by virtue of being an officer of the court, a state actor `under color of state law' within the meaning of § 1983'") (quoting Polk County Page 7 v. Davidson, 454 U.S. 312 (1981)). The Complaint alleges that Mr. Dunham was assigned to Ms. Agron as "a Pro Bono attorney," and thus, was a private attorney and not a state actor. (Compl. at 7.) Plaintiff appears to contend that Mr. Dunham is not a private attorney because he is employed by a law firm. (Pl's Opp. at 4.) This is a misunderstanding of the law, as noted above. Accordingly, Plaintiff's claims relating to violations of her civil rights and to § 1983 do not, as a matter of law, state a cognizable claim against Mr. Dunham and must be dismissed.

  B. Legal Malpractice

  A legal malpractice claim in the State of New York requires the Plaintiff to demonstrate three elements: the negligence of the attorney, that the negligence was the proximate cause of the damages sustained, and proof of actual damages. See Mendoza v. Schlossman, 87 A.D.2d 606, 606-07 (2d Dep't 1982). " [A] plaintiff must not only prove lack of reasonable care; plaintiff must also establish that he would have been successful in the underlying action, if his attorney had exercised due care." Parksville Mobile Modular, Inc. v. Fabricant, 73 A.D.2d 595, 599 (2d Dep't 1979). In other words, Plaintiff must establish that "but for" Defendant's negligence, Plaintiff would have won her case. See Strook & Strook & Lavan v. Beltramini, 157 A.2d 590, 591, (1st Dep't 1990) (to state a Page 8 viable legal malpractice claim, plaintiff must show how she "would have prevailed in the underlying action buy for her attorney's malpractice"); Parker, Chapin, Flattau & Klimpl v. Daelen Corp., 59 A.D.2d 375, 378-79 (1st Dep't 1977) ("The party must show that but for the negligence, the particular result sought by the client would or could have been achieved.").

  Plaintiff makes a variety of allegations with respect to this claim. Insofar as I am able to interpret them, none establishes the essential elements of a claim for malpractice because none allege that Ms. Agron would have ultimately prevailed with regard to her claim "but for" Mr. Dunham's alleged negligence.

  First, Plaintiff complains about the amended complaint drafted and filed by Mr. Dunham in Plaintiff's Original Action. (Comp. at 2-3.) The Complaint lists a variety of matters that Ms. Agron believes Mr. Dunham "was negligent" in failing to include in the amended complaint filed in the Original Action. These matters included that Mr. Dunham omitted Ms. Agron's Supplemental Security Income Division Report that listed Ms. Agron "with Blindness," that Ms. Agron "was reported as a crime victim, on campus of Columbia University," and that Ms. Agron "displayed advanced courses work" at another accredited educational institution. However, a complaint must only set forth "a short and plain statement of the claim," in accordance Page 9 with Federal Rule of Civil Procedure 8(a)(2). Under Rule 8(a)(2), it was not necessary for Mr. Dunham to include in the amended complaint in the Original Action the allegations listed by Ms. Agron. See Swierkiewicz v. Sorema N.A., 534 U.S. 506, 512 (2002) (under Rule 8(a)(2), "a complaint must include only `a short and plain statement of the claim'"). Moreover, as a matter of law, the fact that the amended complaint filed in the Original Action did not list the specific matters cited by Ms. Agron had no effect on the outcome of the trial in her case in the Original Action in August 1999, which was held after document productions, depositions and pretrial motions.

  Second, Plaintiff complains of statements made by Mr. Dunham in a memorandum of law in opposition to Defendant Columbia University's motion for summary judgment on the grounds of the statute of limitations. (Compl. at 3.) However, Plaintiff fails to allege any connection between these statements and how she would have prevailed with regard to her contract claim if Mr. Dunham had argued the statute of limitations issues for that claim differently or that Plaintiff would have ultimately prevailed at trial on her contract claim if Mr. Dunham had won a ruling that the claim was not time-barred. The fact that the trial court did not find merit in Mr. Dunham's arguments that Plaintiff's contract claim was not time-barred does not provide a basis for a malpractice claim. Page 10

  Third, Plaintiff alleges that Mr. Dunham inappropriately provided in discovery a medical report, dated June 1994, to Columbia's lawyer, without her consent. That report (Dunham Decl. Ex. 14) was an expert report by a psychiatrist regarding Plaintiff's mental and emotional disabilities and was provided to Columbia as such, with Ms. Agron's knowledge and consent. See Dunham Decl. Ex. 15 (Interrogatory answers describing Dr. Deutsch's report and accompanying certification bearing Ms. Agron's notarized signature). Regardless, as a document attached by Plaintiff to her Complaint in this case indicates, "neither Dr. Deutsch nor his expert report were presented to the jury at the trial." (Dunham Decl. Ex. 16.) Therefore, plaintiff has failed to demonstrate any connection between the purported inappropriate disclosure and her failure to prevail at trial in the Original Action. Plaintiff's contentions with respect to Dr. Deutsch's opinion and report also fail because he never testified at trial, and his report was not used by Columbia at trial. Therefore, the report cannot be said to have influenced the trial in any way.

  Fourth, the Plaintiff complains that Mr. Dunham reduced the amount of damages claimed from $40 million to in excess of $100,000. (Compl. at 3.) The amended complaint in the Original Action alleged that plaintiff "ha[d] been damaged Page 11 in an amount to be determined but presently believed to be in excess of $100,000" and that Plaintiff sought a judgment against Columbia "in an amount presently believed to be in excess of $100,000 to be determined by the proof at trial." (Dunham Decl. Ex. 2 at 6.) On its face, such language, which is commonly used in complaints in this Circuit, in no way limits the amount of damages that a plaintiff may obtain at trial. In any case, it is not alleged that the amount of damages asserted in Plaintiff's amended complaint had any effect on the outcome of the trial of Plaintiff's claims against Columbia.

  Fifth, Plaintiff complains about various documents that she alleges were not presented at trial. (Compl. § para § 3-4.) However, Plaintiff does not allege that the presentation of these documents would have somehow altered the outcome of the underlying trial, nor does Plaintiff give any indication what she believes that these letters would have established had they been presented to the jury during the trial of her case against Columbia.

  Sixth, Plaintiff alleges that Mr. Dunham Mid nothing to defend [her] with zeal." (Compl. at 4.) However, Plaintiff does nothing more than make this allegation in a conclusory fashion. Furthermore, after the jury rendered its verdict in the Original Action, Judge Griesa thanked the lawyers and made the following statements on the record: "And I would like to Page 12 address the plaintiff's lawyers. You did all you could with this case, all that could possibly be done." (Dunham Decl. Ex. 4 at 33.)*fn1 Furthermore, in Plaintiff's own submission to the Second Circuit, Plaintiff stated of Mr. Dunham that he Mid the best he could, under the most trying circumstances, from the Defendant, etc." (Dunham Decl. Ex. 6 at 6.) Thus, not only do Plaintiff's own record admissions contradict her contention but Plaintiff utterly fails to allege with any particularity how Mr. Dunham failed to represent her with zeal.

  Seventh, Plaintiff claims that Mr. Dunham failed to oppose Columbia's introduction of a "time-barred Columbia Past Prejudice Record dated January 9, 1978." (Compl. at 4.) However, the introduction of other materials similar to the one of which Plaintiff complains were admitted by the trial court over Mr. Dunham's objections. See Dunham Decl. Ex. 25. Plaintiff demonstrates no basis on which Mr. Dunham might have prevailed to prevent Columbia's introduction of the evidence, nor does Plaintiff allege a sufficient causal relationship between the introduction of that evidence and the outcome of the trial.

  Eighth, Ms. Agron complains that Mr. Dunham's associate took away her Hebrew Prayer book and "hid" it. As the Page 13 Complaint explains, however, Columbia's lawyer had requested (and obtained) a ruling from the trial court that Ms. Agron's prayer book not be kept open in front of her at counsel table, within sight of the jury. In any case, it bears no relationship to any outcome in the Original Action. The same applies to Ms. Agron's claims that the trial was not limited to 4 hours a day, Plaintiff did not receive hearing devices, and that she was not given notes or a transcript of the proceedings. These bear no relationship to the outcome of the Original Action or the appeal thereof.

  Ninth, Ms. Agron asserts that Mr. Dunham mishandled the way in which her discrimination claim should have been tried. Ms. Agron appears to contend that Mr. Dunham should have tried her discrimination claims against Columbia's claims of discrimination based upon her physical disabilities rather than based upon mental or emotional disabilities. (See Pl's Opp. at 11-13, 18.) However, even taken as true, these allegations fail to establish that Plaintiff could have prevailed on claims of discrimination because the jury found that Ms. Agron was not "otherwise qualified" to be a student at Columbia and therefore the jury never reached the question of whether Ms. Agron had been discriminated against. Therefore, the jury never even reached the question of whether Ms. Agron had been discriminated against. Page 14

  Tenth, Ms. Agron complains that her academic record at Bar Ilan University and Hunter College demonstrates that she was qualified. (Pl's Opp. at 17-18.) However, this is an argument that was presented to the jury in the Original Action and not a basis for a malpractice claim against her attorney. In any case, none of the purported evidence claimed by Plaintiff can be deemed in any way likely to have changed the jury's determination that Plaintiff was not otherwise qualified.

  Finally, Ms. Agron contends that Mr. Dunham violated various disciplinary rules in the course of his representation of Ms. Agron. However, an alleged violation of a disciplinary rule "does not, without more, generate a cause of action." Schwartz v. Olshan Grundman Frome & Rosezweig, 302 A.D.2d 193, 199, 753 N.Y.S.2d 482, 487 (App. Div. 2003). Here, none of the alleged violations is relevant to Plaintiff's claims of malpractice and Plaintiff's burden of pleading facts that she would have prevailed on her claims against Columbia were it not for Mr. Dunham's alleged negligence. Therefore, because none of the allegations supports the existence of a causal relationship between the alleged violations and the outcome of the trial of her claims, the allegations are insufficient to state a claim for malpractice as a matter of law. Page 15

  C. Conspiracy

  Under New York law, a civil conspiracy claim must be based upon a viable intentional tort claim. See, e.g., Alexander & Alexander of N.Y., Inc. v. Fritzen, 68 N.Y.2d 968, 969, 503 N.E.2d 102, 103, 510 N.Y.S.2d 546, 547 (1986). As discussed, supra, Plaintiff's allegations are insufficient as a matter of law to establish that Mr. Dunham committed any intentional tort against her. Thus, Plaintiff fails to state a claim for civil conspiracy because no underlying tort has been properly pled. Moreover, Plaintiff's conspiracy claim fails for the additional reason that her allegations of conspiracy are entirely conclusory and do not provide a "factual basis indicating the existence of a civil conspiracy." See Grennwaldt v. Coughlin, No. 93 Civ. 6551, 1995 U.S. Dist. LEXIS 5144, at *16 (S.D.N.Y. Apr. 19, 1995). Accordingly, insofar as Plaintiff attempts to assert a claim for civil conspiracy, that claim is dismissed. Page 16


  For the reasons stated above, Defendant's motion to dismiss is granted, and Plaintiff's Complaint is dismissed in its entirety with prejudice. The Clerk of the Court shall mark this action closed and all pending motions denied as moot.


Buy This Entire Record For $7.95

Official citation and/or docket number and footnotes (if any) for this case available with purchase.

Learn more about what you receive with purchase of this case.