Waggoner v Caruso
2010 NY Slip Op 04026 [14 NY3d 874]
May 11, 2010
Court of Appeals
Published by New York State Law Reporting Bureau pursuant to Judiciary Law § 431.
As corrected through Wednesday, July 14, 2010

J. Virgil Waggoner et al., Appellants,
Kenneth A. Caruso et al., Respondents.

Decided May 11, 2010

Waggoner v Caruso, 68 AD3d 1, affirmed.


Lally Mahon & Rooney LLP, New York City (James J. Mahon of counsel), for appellants.

Patterson Belknap Webb & Tyler, LLP, New York City (Frederick B. Warder III and Rosanne E. Felicello of counsel), for Kenneth A. Caruso, respondent.

Pillsbury Winthrop Shaw Pittman LLP, New York City (E. Leo Milonas and David G. Keyko of counsel), respondent pro se.

{**14 NY3d at 875} OPINION OF THE COURT


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 [*2]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.

Chief Judge Lippman and Judges Ciparick, Graffeo, Read, Smith, Pigott and Jones concur in memorandum.

On review of submissions pursuant to section 500.11 of the Rules of the Court of Appeals (22 NYCRR 500.11), order affirmed, etc.