Allegrino v. Ruskin Moscou Faltischek, P.C. ( 2021 )

21-484-cv
Allegrino v. Ruskin Moscou Faltischek, P.C.
UNITED STATES COURT OF APPEALS
FOR THE SECOND CIRCUIT
SUMMARY ORDER
RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A
SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED
BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1.
WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH THIS COURT, A PARTY
MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC DATABASE (WITH THE
NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST SERVE A COPY
OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.
At a stated Term of the United States Court of Appeals for the Second Circuit, held at the
Thurgood Marshall United States Courthouse, 40 Foley Square, in the City of New York on the
24th day of November, two thousand twenty one.
Present: DENNIS JACOBS,
ROSEMARY S. POOLER,
Circuit Judges,
DIANE GUJARATI, 1
District Judge.
_____________________________________________________
ANTHONY J. ALLEGRINO, II,
Plaintiff-Appellant,
v. 21-484-cv
RUSKIN MOSCOU FALTISCHEK, P.C.,
JOHN G. FARINACCI, MARTIN A. COHEN, BRUCE DUNN,
Defendants-Appellees.
_____________________________________________________
Appearing for Appellant: Anthony J. Allegrino, II, pro se, Beverly Hills, CA.
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Judge Diane Gujarati, United States District Court for the Eastern District of New York, sitting
by designation.
Appearing for Appellee: J’Naia L. Boyd (Shari Claire Lewis, Rivkin Radler LLP,
Uniondale, N.Y., for Ruskin Moscou Faltischek P.C. and
Farinacci.
Ralph L. Puglielle, Jr., Drake Loeb PLLC, New Windsor, N.Y., for
Cohen and Dunn.
Appeal from the United States District Court for the Southern District of New York (Halpern,
J.).
ON CONSIDERATION WHEREOF, IT IS HEREBY ORDERED, ADJUDGED,
AND DECREED that the judgment of said District Court be and it hereby is AFFIRMED.
Anthony J. Allegrino II, a disbarred attorney proceeding pro se, sued the law firm Ruskin
Moscou Faltischek, P.C. (“RMF”) and its attorney John G. Farinacci, as well as attorneys Martin
A. Cohen and Bruce Dunn for legal malpractice, alleging that they failed to properly represent
him in a probate proceeding. Allegrino alleged that he was the sole beneficiary of an estate under
a 2006 will that was not accepted to probate, according to a 2006 will, but that the will was not
accepted to probate because the defendants failed to represent him at a court hearing. The
district court dismissed Allegrino’s second amended complaint for failure to state a claim and
denied leave to amend the complaint for a third time. We assume the parties’ familiarity with
the underlying facts, procedural history, and specification of issues for review.
“We review the grant of a motion to dismiss de novo, accepting as true all factual claims
in the complaint and drawing all reasonable inferences in the plaintiff’s favor.” Fink v. Time
Warner Cable, 714 F.3d 739, 740–41 (2d Cir. 2013) (citation omitted). In New York, “[t]o
establish a cause of action for legal malpractice, the plaintiff must show that the attorneys were
negligent, that their negligence was the proximate cause of the plaintiff's damages, and that the
plaintiff suffered actual damages as a direct result of the attorneys’ actions[.]” Franklin v.
Winard, 606 N.Y.S.2d 162, 164 (1st Dep’t 1993). “The New York Court of Appeals has made it
clear that a cause of action for legal malpractice pose[s] a question of law which [can] be
determined on a motion to dismiss.” Achtman v. Kirby, McInerney & Squire, LLP, 464 F.3d
328, 337 (2d Cir. 2006) (alterations in original) (internal quotation marks omitted).
The district court properly dismissed the legal malpractice claims against RMF and
Farinacci. A plaintiff cannot state a legal malpractice claim against an attorney where the actions
of the attorney giving rise to the claim fall outside of the scope of the attorney’s representation.
See Hallman v. Kantor, 901 N.Y.S.2d 284, 286-87 (2d Dep’t 2010). Here, the two retainer
agreements between Allegrino and RMF specifically provided that RMF and Farinacci would
represent Allegrino only with respect to the appeal of the probate proceeding to the Appellate
Division. Neither agreement provided for representation in the underlying probate proceeding.
The first agreement stated that RMF agreed only to evaluate the possible merits of an appeal; the
firm did not agree to pursue the appeal. In the second agreement, RMF agreed to represent
Allegrino in the Appellate Division appeal only and explicitly stated that the representation did
not include “any proceedings in the Surrogate’s Court” related to the 2006 will.
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Allegrino’s reliance on additional evidence is insufficient to establish an enforceable
contract. “To establish the existence of an enforceable agreement, a plaintiff must establish an
offer, acceptance of the offer, consideration, mutual assent, and an intent to be bound.”
Kowalchuk v. Stroup, 873 N.Y.S.2d 43, 46 (1st Dep’t 2009) (citing 22 N.Y. Jur. 2d, Contracts §
9). A meeting of the minds is “a manifestation of mutual assent sufficiently definite to assure that
the parties are truly in agreement with respect to all material terms.” Stonehill Capital Mgmt.,
LLC v. Bank of the West, 28 N.Y.3d 439, 448 (2016) (internal quotation marks omitted). “In
determining whether the parties intended to enter a contract, and the nature of the contract’s
material terms, [courts] look to the objective manifestations of the intent of the parties as
gathered by their expressed words and deeds.” Id. at 448–49 (internal quotation marks omitted).
The evidence, including “attendant circumstances, the situation of the parties, and the objectives
they were striving to attain,” is viewed in its totality. Id. at 449.
The allegations and evidence presented here do not show that Allegrino, RMF, and
Farinacci had a meeting of the minds with respect to representing Allegrino in the probate
proceeding. The handwritten amendment to the retainer agreement demonstrates only that
Allegrino wrote on the document. It does not contain any initialing or a signature showing that a
representative from RMF agreed to the change. Further, an April 21, 2017 letter from RMF to
Allegrino suggests that RMF never entered into any contract to represent Allegrino beyond the
appeal because RMF stated it had never contracted to represent Allegrino in the probate
proceeding. The district court thus properly dismissed the claims against RMF and Farinacci.
The district court also properly dismissed the legal malpractice claims against Cohen and
Dunn. To establish a cause of action for legal malpractice, the plaintiff must show that “the
plaintiff suffered actual damages as a direct result of the attorneys’ actions[.]” Franklin, 606
N.Y.2d at 164. The attorney’s action or inaction must have been the “but for” cause of the
plaintiff’s damages. See Plentino Realty, Ltd. v. Gitomer, 628 N.Y.S.2d 75, 88-89 (1st Dep’t
1995). Speculation alone is insufficient to establish causation. See Russo v. Feder, Kaszovitz,
Isaacson, Weber, Skala & Bass, LLP, 750 N.Y.S.2d 277, 281 (1st Dep’t 2002) (causation relies
on prima facie proof that the client would have succeeded; “a legal theory of causation cannot be
sustained on surmise”).
Allegrino cannot show that Cohen’s and Dunn’s failure to appear on the April 2017
return date was the but for cause of the 2006 will being denied admission to probate. The 2006
will was not denied admission to probate on the actual return date; instead, the parties were given
time to submit papers and documentation outlining their respective positions. Allegrino failed to
submit any response in the three months between the April 2017 hearing date and July 2017
deadline to file supporting documentation in support of his position. Allegrino argues that the
probate proceeding was straightforward and that the will “should have sailed right through
without hurdles.” But mere speculation is not sufficient to defeat a motion to dismiss. See Bell
Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007) (“Factual allegations must be enough to raise a
right to relief above the speculative level[.]”). As the district court discussed, multiple steps
needed to occur before the probate court could admit the 2006 will to probate—including a
hearing with testimony—none of which would likely have occurred on the return date. The
surrogate’s court was required to determine that the 2006 will’s execution was valid before
admitting the will to probate. Matter of Falk, 845 N.Y.S.2d 287, 290 (1st Dep’t 2007). In order
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to show that the will’s execution was valid, Allegrino would have needed to show that the
decedent’s signature on the 2006 will was genuine—and thereby overcome a report from a
forensic handwriting expert that stated it was “highly probable” that the signature was not
genuine—and convince two witnesses to recant their deposition testimony. See id. (the
proponent of a purported will had the burden of demonstrating that the will was duly executed).
The witnesses, who were the two men who allegedly witnessed the decedent sign the 2006 will,
had testified at a deposition that they did not recall if the decedent declared the document to be
his will. Allegrino would have needed to cross-examine those witnesses and convince them to
change their testimony. Thus, the fact that Cohen and Dunn missed a single court appearance is
not enough to show that that was the cause of the 2006 will being denied admission to probate.
Because Allegrino did not show that Cohen and Dunn’s failure to appear was the but for cause of
his damages, he failed to state a claim for legal malpractice. See Plentino Realty, 628 N.Y.S.2d
at 75.
Finally, Allegrino argues that the district court should have granted leave to amend his
complaint for a third time. This argument is meritless. “Although [Federal Rule of Civil
Procedure] 15(a) provides that leave to amend a complaint ‘shall be freely given when justice so
requires,’ . . . it is within the sound discretion of the district court whether to grant or deny leave
to amend.” Zahra v. Town of Southold, 48 F.3d 674, 685 (2d Cir. 1995) (internal quotation marks
and citation omitted). District courts may deny leave to amend “for good reason, including
futility, bad faith, undue delay, or undue prejudice to the opposing party.” TechnoMarine SA v.
Giftports, Inc., 758 F.3d 493, 505 (2d Cir. 2014) (internal quotation marks and citation omitted).
Here, as the district court correctly concluded, amendment was futile. As set forth above, the
retainer agreement did not obligate RMF and Farinacci to represent Allegrino in the probate
proceeding. The claims against Cohen and Dunn failed because Allegrino could not plausibly
allege that their failure to appear in April 2017 was the but for cause of his damages.
We have considered the remainder of Allegrino’s arguments and find them to be without
merit. Accordingly, we AFFIRM the judgment of the district court.
FOR THE COURT:
Catherine O’Hagan Wolfe, Clerk
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