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Waggoner v. Caruso

New York Court of Appeals


May 11, 2010

J. VIRGIL WAGGONER, ET AL., APPELLANTS,
v.
KENNETH A. CARUSO, ET AL., RESPONDENTS.

MEMORANDUM:

The order of the Appellate Division should be affirmed, with costs; and the certified question not answered upon the ground that it is unnecessary.

The Appellate Division properly held that plaintiffs J. Virgil Waggoner and J.V.W. Investment Ltd. of Dominica did not state a claim for legal malpractice insofar as they failed to allege that, but for defendants' alleged malpractice, they would have successfully recovered the $10 million investment in an underlying proceeding (see Davis v Klein, 88 NY2d 1008, 1009-1010 [1996]). The court also properly dismissed plaintiffs' claim in this case for breach of fiduciary duty as duplicative of the claim for legal malpractice.

On review of submissions pursuant to section 500.11 of the Rules, order affirmed, with costs, and certified question not answered upon the ground that it is unnecessary, in a memorandum. Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur.

20100511

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