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Terracciano v. McGarrity

United States District Court, S.D. New York

May 24, 2017



          Loretta A. Preska, Senior United States District Judge:

         Before 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.

         I. BACKGROUND

         The 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).

         The 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).

         On his 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).[1]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.)

         On his 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).


         Rule 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).

         A 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, 557.

         In 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 omitted)}.


         Defendants 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 (S.D.N.Y.1994).

         The 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 case.

         Furthermore, 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 ...

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