On or about May 24, 2007, plaintiff Jimmy Silberberg met with defendant attorney Jay A. Meyers, at defendant's office located at 1688 Victory Boulevard, Staten Island, New York, to discuss Mr. Silberberg's desire to file for Chapter 7 Bankruptcy. On that date Mr. Silberberg signed a retainer agreement for defendant to initiate the bankruptcy petition. The retainer agreement only named plaintiff Jimmy Silberberg as the client, no one else's name appears anywhere on the agreement. In proceeding with the bankruptcy filing defendant asked Mr. Silberberg to compile his financial information and confirm the transfer date of his residence located at 378 Travis Avenue. Mr. Silberberg had previously indicated that he deeded the residence to his wife, plaintiff Helene Silberberg "at least seven years" ago. Defendant requested the deed or confirmation of the transfer date from Mr. Silberberg but he failed to provide a proof and urged defendant to proceed in filing the Chapter 7 Bankruptcy petition. On June 12, 2007, defendant sent plaintiff Jimmy Silberberg a letter titled "Chapter 7 filing implications regarding non debtor spouse.^[FN1]" The [*2]letter specifically provided that defendant's representation extended only to Jimmy Silberberg and not to his wife, Helene Silberberg. Defendant also specified in the letter that had the house been transferred less than six years ago, a bankruptcy trustee may sue plaintiff Jimmy Silberberg's wife for plaintiff's share of the equity transferred. Plaintiff insisted defendant proceed with the bankruptcy proceeding and on June 21, 2007, defendant filed the petition.

Thereafter, on or about October 6, 2007, the Bankruptcy Trustee wrote to Jimmy Silberberg's creditors advising them of potential assets. On November 27, 2008, a complaint was filed against Helene Silberberg alleging that the transfer of the residence was a fraudulent conveyance and the Bankruptcy Trustee sought to recover Jimmy Silberberg's estimated $296,000 equity share of the residence. Plaintiff Jimmy Silberberg then informed defendant that he had retained new counsel to represent him in the bankruptcy proceeding. On or about September 30, 2008, plaintiffs Jimmy and Helene Silberberg commenced this action alleging legal malpractice against defendant. Presently, defendant has brought this motion to dismiss this action on the ground that no evidence of negligence on defendants' part exists.

"On a motion to dismiss a cause of action pursuant to CPLR § 3211 (a)(7), the court must accept as true the factual allegations of the complaint and accord the plaintiff all favorable inferences which may be drawn therefrom" (Montes Corp. v. Charles Freihofer Baking Co., 17 AD3d 330, 330 [2d Dept. 2005]; City Line Rent a Car, Inc. v. Alfess Realty, 33 AD3d 835, 835 [2d Dept. 2006]). "If the plaintiff can succeed upon any reasonable view of the allegations, the complaint may not be dismissed" (Montes Corp. v. Charles Freihofer Baking Co., 17 AD3d 330, 330 [2d Dept. 2005]; General Cas. Ins. Co. v. Kerr Heating Products, 48 AD3d 512, 514 [2d Dept. 2008]).

To bring a cause of action to recover damages for legal malpractice, plaintiff must show "that the defendant attorney failed to exercise that degree of care, skill, and diligence commonly possessed by a member of the legal community, proximate cause, damages, and that the plaintiff would have been successful in the underlying action had the attorney exercised due care" (Briggs v. Berkman, 284 AD2d 423, 424 [2d Dept., 2001]; Dimond v. Kazmierczuk & McGrath , 15 AD3d 526, 527 [2d Dept., 2005]; Iannacone v. Weidman, 273 AD2d 275, 276 [2d Dept., 2000]).

The Court notes that plaintiff Jimmy Silberberg has failed to oppose defendant's motion. Therefore, defendant's motion to dismiss Jimmy Silberberg's complaint as against him is hereby granted.

With respect to plaintiff Helene Silberberg's claims, it is well settled that to establish a cause of action for legal malpractice, an attorney client relationship must exist between plaintiff and defendant (Moran v. Hurst, 32 AD3d 909, 910 [2d Dept., 2006]; Wei Cheng [*3]Chang v. Pi, 288 AD2d 378, 380 [2d Dept., 2001]). In assessing whether an attorney client relationship exists, the court will look to the "words and actions of the parties" (Moran v. Hurst, 32 AD3d 909, 911 [2d Dept., 2006]; Nelson v. Kalthara, 48 AD3d 528, 529 [2d Dept., 2008]). "The payment of an attorney's fee by a third party does not, in and of itself, create an attorney-client relationship" (Moran v. Hurst, 32 AD3d 909, 910 [2d Dept., 2006]; Nelson v. Kalthara, 48 AD3d 528, 529 [2d Dept., 2008]).

In support of his motion, even providing plaintiff with every favorable inference, defendant has established that the retainer agreement was explicitly between plaintiff Jimmy Silberberg and defendant and that no legal relationship existed between defendant and Helene Silberberg (Montes Corp. v. Charles Freihofer Baking Co., 17 AD3d 330, 330 [2d Dept. 2005]; General Cas. Ins. Co. v. Kerr Heating Products, 48 AD3d 512, 514 [2d Dept. 2008]). In looking at the words and actions of the parties' it is clear that there is no mention of Helene Silberberg in the retainer agreement and the confirmation letter clearly indicated that defendant's representation will extend only to plaintiff Jimmy Silberberg and not to plaintiff's wife. Further, no evidence is presented at all to indicate that an attorney client relationship existed between defendant and plaintiff Helene Silberberg. Although plaintiff Helene Silberberg had paid a fee to defendant on plaintiff Jimmy Silberberg's behalf, that does not establish an attorney client relationship with defendant (Nelson v. Kalathara, 48 AD3 528 [2d Dept., 2008][holding that existence of a retainer agreement nor payment of a fee dictates the existence of an attorney client relationship]; Breen v. Law Offices of Bruce A. Barket, P.C., 52 AD3d 635, 636 [2d Dept., 2008][finding that where an individual is not in privity with the attorney, no attorney client relationship exists]). As a result, the cause of action for legal malpractice, as pleaded by plaintiff Helene Silberberg, therefore fails and defendant's motion is hereby granted in its entirety.

Accordingly, it is

ORDERED that the defendant Jay A. Meyers' motion to dismiss the complaint is

hereby granted, and it is further

ORDERED that the complaint is dismissed in its entirety, and it is further,

ORDERED that the Clerk enter Judgment Accordingly.

THIS IS THE DECISION AND ORDER OF THE COURT.

Dated: March 30, 2009E N T E R,

______________________________

Hon. Judith N. McMahon

Justice of the Supreme Court