FT - Callaghan v. Goldsweig (5/13/2004)

[Riser Adkisson LLP]

Callaghan v. Goldsweig,
2004.NY.0004492 (N.Y.App.Div. 05/13/2004)

NEW YORK SUPREME COURT, APPELLATE DIVISION, FIRST DEPARTMENT

3637

2004 NYSlipOp 00452, 2004.NY.0004492

May 13, 2004

JANET CALLAGHAN, PLAINTIFF-APPELLANT,
v.
SUSAN GOLDSWEIG, ESQ., ET AL., DEFENDANTS-RESPONDENTS.

Curtis & Associates, New York (w. Robert Curtis of counsel), for appellant.

Susan Goldsweig, Yonkers, respondent pro se.

Arthur H. Grae, Yonkers, respondent pro se.

Allan J. Berke, New York, respondent pro se.

Nardelli, J.P., Andrias, Ellerin, Lerner, Marlow, JJ.

This opinion is uncorrected and subject to revision before publication in the Official Reports.

Order, Supreme Court, New York County (Marilyn Shafer, J.), entered January 31, 2003, which, to
the extent appealed from, dismissed the claim of fraudulent representation against defendant
Goldsweig, dismissed claims of legal malpractice and violation of Judiciary Law § 487 against
defendant Grae, required repleading of the claim for breach of fiduciary duty against Grae and
the § 487 and fiduciary duty claims against defendant Berke, and dismissed the claim of
fraudulent conveyance against Berke, unanimously affirmed, with costs.

Defendants are alleged to have assisted or participated in the representation of plaintiff in her
divorce action. With regard to the repleading directive, the poorly drafted complaint and
attached exhibits contained many irrelevancies, to the point of being excessively burdensome, and
some factual allegations even appeared under the wrong cause of action.

Accepting as true the facts as alleged in the complaint (219 Broadway Corp. v Alexander's, Inc.,
46 NY2d 506), as well as all reasonable inferences to be gleaned therefrom (see McGill v Parker,
179 AD2d 98, 105), the claim for fraudulent representation against Goldsweig still failed to
state a cause of action. It does not appear that Goldsweig was trying to conceal her inability to
serve as plaintiff's attorney of record: there was no sign on her office door holding her out as
an attorney, and she told plaintiff that she "couldn't do the divorce" and would arrange for
another attorney to handle it. Goldsweig's failure to spell out that she was no longer a member
of the bar does not, under these circumstances, amount to misrepresentation of a material
existing fact, an essential element in a cause of action for fraud (see New York Univ. v
Continental Ins. Co., 87 NY2d 308, 318).

Grae's failure to acknowledge uncertainty over the facts surrounding plaintiff's daughter's
injury, prior to his preparation and submission of plaintiff's affidavit alleging that her
husband had abused the child, did not state a viable cause of action for legal malpractice. This
would constitute an expectation beyond "the reasonable skill and knowledge commonly possessed by
a member of the legal profession" (see Arnav Indus., Inc. Retirement Trust v Brown, Raysman,
Millstein, Felder & Steiner, 96 NY2d 300, 303-304). Plaintiff never alleged that Grae knew the
statements in the affidavit were false when he submitted it, and thus did not spell out a
violation of § 487. Indeed, plaintiff took the converse position when she alleged that Berke
later "falsely retract[ed] every allegation she had correctly made against her husband."

There is no indication that plaintiff's due process rights were substantially prejudiced,
inasmuch as she does not challenge the court's reasoning in dismissing the fraudulent conveyance
claim sua sponte (see Greene v Davidson, 210 AD2d 108, 109, lv denied 85 NY2d 806). We have
considered plaintiff's other arguments and find them unavailing.

THIS CONSTITUTES THE DECISION AND ORDER OF THE SUPREME COURT,
APPELLATE DIVISION, FIRST DEPARTMENT.