United States District Court, S.D. New York
MEMORANDUM OPINION AND ORDER
Loretta A. Preska, Senior United States District Judge:
the Court are two motions to dismiss filed by (1) Defendants
Thomas McGarrity and Rosenblatt & McGarrty, LLP, and (2)
Defendant Lawrence Glynn. (McGarrity Mot., Oct. 7, 2016, ECF
No. 24; Glynn Mot., Oct. 7, 2016, ECF No. 25). Plaintiff
Terracciano filed an opposition, which Plaintiff's
counsel termed an "Affirmation, " (Opp., Jan. 17,
2017, ECF No. 46), to which Defendants filed replies, (Glynn
Reply, Feb. 7, 2017, ECF No. 55; McGarrity Reply, Feb.
1, 2017, ECF No. 57}. Plaintiff has failed
adequately to allege diversity jurisdiction. However, if the
Court did have jurisdiction it would find that Plaintiff has
failed to state a claim for either legal malpractice or
breach of contract and that amendment of the Complaint would
be futile. Accordingly, Defendants' motions to dismiss
are granted and the case is dismissed.
following facts are drawn from the Complaint and other
documents incorporated by reference. Plaintiff Terracciano
brings this action for breach of contract and negligence in
the form of legal malpractice, alleging that he retained
Defendants McGarrity, Rosenblatt & McGarrty, LLP, and
Glynn to represent him in a guardianship case involving his
parents, Laura and Fiore Terracciano, in exchange for a $10,
000 retainer fee. (Compl. ¶¶ 4, 14, Feb. 19, 2016,
ECF No. 1). Plaintiff's brother, Paul Terracciano, had
brought a case in Supreme Court, Westchester County, before
Judge Emmett Murphy seeking to have his parents declared
incompetent persons ("IPs") and guardianship over
his parents and his parents' property. (Id.
¶ 5-6}. Paul Terraciano also sought to revoke all powers
of attorney naming Plaintiff as attorney-in-fact.
(Id. ¶ 6).
Complaint alleges that the Defendants agreed via their
retainer agreement to carry out the following tasks: (1} to
appear at an impending February 20, 2013, hearing to contest
the incompetency of Laura and Fiore Terracciano and other
statements made by Paul Terracciano, (2) to move to dismiss
the guardianship proceeding on the basis of improper service,
(3) to obtain affidavits attesting to the mental fitness of
Laura and Fiore Terracciano, (4) to retrieve from the court
file a copy of the underlying petition and related
affidavits, (5) to file notices of appearances by February 4,
2013, (6) to set up a meeting with Court Evaluator Steward
McMillan, (7} to produce affidavits attesting to the mental
fitness of Laura and Fiore Terracciano to Court Evaluator
McMillan, (8) to produce to the court financial records
showing that Paul Terracciano had misappropriated funds
belonging to Laura and Fiore Terracciano, and (9) to subpoena
witnesses Jean Prem Howe and Chuck Howe, who would be able to
attest to the mental fitness of Laura and Fiore Terracciano.
(Compl. ¶ 9).
breach of contract claim, Plaintiff alleges that Defendants
breached each one of the agreements listed above, noting in
particular that Defendant Glynn failed to prepare for the
February 2013 hearing, reading the petition only minutes
before it began, and that Defendant McGarrity failed to
attend at all. (IcL ¶¶ 10-49}. As a result of the
Defendants' failures, the Complaint alleges that Paul
Terracciano acquired control over Laura and Fiore
Terracciano's money and persons and that Plaintiff's
powers of attorney were revoked. (Id. ¶
50).Plaintiff alleges that he suffered damages
in the form of the $10, 000 paid to the Defendants for the
retainer agreement and $100, 000 paid to new counsel in order
to correct Defendants' errors. (Id. ¶ 52).
Plaintiff also seeks damages for the emotional distress he
suffered in the amount of $20 million and for punitive
damages in the amount of $20 million. (Id.)
negligence claim, Plaintiffs alleges substantially the same
conduct described above. Plaintiff alleges that the
Defendants owed him a duty of effective and meaningful
representation, which they breached by failing to file the
proper motions, failing to attend the February 2013 hearing,
failing to obtain necessary records, failing to call
necessary witnesses, failing to object to an in camera
questioning of Laura and Fiore Terracciano to determine their
competency, failing to file a notice of appeal, and other
errors described above. (Id. ¶¶ 54-55).
Plaintiff alleges that Defendants' negligence was the
proximate cause of his damages, which include the $10, 000
for the retainer agreement, $100, 000 to pursue an appeal,
$20 million in emotional damages against each Defendant, and
$20 million in punitive damages against each Defendant.
(Id. ¶¶ 60-61).
12(b)(6) permits a district court to dismiss a complaint for
"failure to state a claim upon which relief can be
granted" upon a motion by a defendant. Fed.R.Civ.P.
12(b)(6). In considering such a motion, courts must accept
all non-conclusory factual allegations as true and draw
"all reasonable inferences in the plaintiff's
favor." Goldstein v. Pataki, 516 F.3d
50, 56 (2d Cir. 2008)(quoting Chambers v. Time
Warner, Inc., 282 F.3d 147, 152 (2d Cir. 2002)) (internal
quotation mark omitted); Ashcroft v. Iqbal, 129
S.Ct. 1937, 1949-50 (2009).
complaint will survive a motion to dismiss, however, only if
it "contain[s] sufficient factual matter, accepted as
true, toxstate a claim to relief that is plausible
on its face.'" Iqbal, 129 S.Ct. at 1949
(quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544,
570 (2007)). This "plausibility standard . . . asks for
more than a sheer possibility that a defendant has acted
unlawfully" and requires a "context-specific"
consideration of the complaint's factual allegations
based upon the court's "judicial experience and
common sense." Id. at 1949-50. In this
analysis, complaints that merely offer "labels and
conclusions, " "naked assertion[s]" devoid of
"further factual enhancement, " or "a
formulaic recitation of the elements of a cause of action
will not" survive. Twombly, 550 U.S. at 555,
ruling on a 12(b)(6) motion, a court may consider the
complaint as well as "any written instrument attached to
the complaint as an exhibit or any statements or documents
incorporated in it by reference." Zdenek Marek v.
Old Navy (Apparel) Inc., 348 F.Supp.2d 275, 279
(S.D.N.Y.2004) (citing Yak v. Bank Brussels Lambert,
252 F.3d 127, 130 (2d Cir.2001} (internal quotations
argue that Plaintiff has not proved diversity, which is the
only basis for federal jurisdiction over this case. In order
for a court to assert diversity jurisdiction, a plaintiff
must allege that the case "is between . . . citizens of
different states." 28 U.S.C. § 1332(a)(1). "It
is firmly established that diversity of citizenship should be
distinctly and positively averred in the pleadings, or should
appear with equal distinctness in other parts of the
record." Leveraged Leading Admin. Corp. ex
rel. Dweck v. Pacificorp Capital, 87 F.3d 44, 47 (2d
Cir. 1996)(internal quotation and citation omitted). 28
U.S.C. § 1332 provides that "a corporation shall be
deemed to be a citizen of any State by which it has been
incorporated and of the State where it has its principal
place of business ..." 28 U.S.C. § 1332(c)(1). With
respect to individual parties, citizenship "depends upon
their places of domicile. Even though a party may have
several places of residence, he or she may have only one
domicile at a given time." Chapelle v. Beacon
Communications Corp., 8 63 F.Supp. 179, 181
Complaint alleges only that Plaintiff "maintains a
residence in Palm City, Florida, " and that Defendants
maintain their principal place of business in White Plains,
New York. (Compl. ¶¶ 1-2). However, it is
well-established that "a statement of the parties'
residence is insufficient to establish their
citizenship." Dweck, 87 F.3d at 47.
Furthermore, the Complaint alleges nothing that would
indicate the citizenship of the individual Defendants.
Plaintiff's averments are plainly insufficient for the
Court to conclude that Plaintiff is a citizen of Florida,
that all of the Defendants are citizens of New York, and that
the Court therefore has diversity jurisdiction over this
in an action that Plaintiff commenced only one week after he
filed the Complaint in this case, Plaintiff stated that
"at all times hereinafter mentioned, Plaintiff Richard
Terracciano was and still is a resident of the State of New
York." (McGarrity Mot. Ex. E ¶ 1). The Court notes,
as an initial matter, that it may take judicial notice of
documents filed in other courts and with other adjudicatory
bodies. Rothman v. Gregor, 220 F.3d 81, 92 (2d Cir.
2000). Plaintiff argues in his Opposition that although he
does have a residence in New York he is in fact a citizen of
Florida, providing evidence that he pays property taxes and
utilities in Florida, is registered to ...