The following e-filed documents, listed by NYSCEF document number (Motion 005) 42, 43, 44, 45, 46, 47, 85 were read on this motion to/for DISMISSAL.

The following e-filed documents, listed by NYSCEF document number (Motion 006) 48, 49, 50, 84 were read on this motion to/for DISMISSAL.

The following e-filed documents, listed by NYSCEF document number (Motion 007) 51, 52, 53, 54, 55, 56, 86 were read on this motion to/for DISMISSAL.

The following e-filed documents, listed by NYSCEF document number (Motion 008) 57, 58, 59, 60, 61, 62, 63, 64, 65, 66, 67, 68, 69, 70, 71, 72, 73, 74, 75, 76, 77, 78, 79, 80, 81, 82, 83, 87 were read on this motion to/for DISMISSAL.

In motion sequences 005, 006, 007, and 008, defendants the Russell Friedman Law Group, LLP, Charles Horn, Esq., Neil Flynn, Esq., Phillip Hakyeon Kim, Esq., Ronald Frederick Wright, Jr. Esq., the Estate of Russell C. Friedman, deceased, Lake Success Receivables Recovery, Inc., M & D Capital Premier Billing, LLC, Drachman Katz, LLP, and Revaz Chachanashvili and Associates P.C. respectively move pursuant to CPLR 3211, 3013, and 3016 to dismiss plaintiffs Metro Pain Specialists, P.C. ("Metro Pain"), Leonid Shapiro, M.D. ("Shapiro"), and Neurological Diagnostic P.C.'s ("Neurological Diagnostics") amended complaint.^[FN1] The motions to dismiss are collectively opposed, and plaintiffs filed a cross-motion pursuant to CPLR 3025 (b) for leave to file a second amended complaint. For the following reasons, the pre-answer motions to dismiss are granted, the cross-motion to amend is denied, and the complaint is dismissed.

In June 2023, plaintiffs Metro Pain, Shapiro, and Neurological Diagnostics commenced this action against multiple law firms, attorneys, and medical billing services providers, claiming breach of contract, legal malpractice, and breach of fiduciary duty. (See generally NYSCEF doc. no. 37, amended complaint.) Metro Pain is a corporation comprised of physicians rendering medical treatment to patients. Shapiro is a physician for and officer of Metro Pain. Metro Pain alleges it has contracted with funders or factoring companies which provided cash flow, billing, or collection services, which include collection of billings to patients and insurers, collection of patient payments, and collection of insurer payments and linked loans, as well as financing and factoring practices and charges concerning collection of medical billings arising from medical services rendered by Metro Pain. (Id.)

Defendants the Russel Fieldman Law Group LLP, Revaz Chachanashvili and Associates, P.C., and Drachman Katz, LLP are law firms which are alleged to have represented plaintiffs in various litigations consisting of collection practices by the filing of claims, filing of demands for arbitrations concerning no-fault claims, filing of demands for payment of no-fault medical billing claims on behalf of Metro Pain and Neurological with insurers and other payors of medical bill claims and no-fault claims. The individual attorney defendants, the Estate of Russel C. Friedman, deceased, Charles Horn, Neil Flynn, Phillip Kim, and Ronald Wright, are alleged to have been employed by or otherwise related to the Russel Fieldman Law Group LLP, rendering legal services to plaintiffs. Lake Success Receivables Recovery, Inc. ("Lake Success") and M & D Capital Billing, LLC ("M&D Capital") (together, "billing defendants") are respective providers of medical billing services which have allegedly provided medical billing collection services to plaintiffs.

Plaintiffs allege that defendants the Russell Friedman Law Group LLP, Charles Horn, Neil Flynn, Phillip Kim, Ronald Wright, the Estate of Russell C. Friedman, deceased, Drachman Katz, LLP, and Revaz Chachanashvili and Associates P.C. (collectively, "law firm defendants") failed to reasonably undertake attorney and collection services in representation of plaintiffs, but for which there would have been a better financial outcome for Plaintiff. As to the billing defendants, plaintiffs allege that they violated certain sections of the "Agreement" governing the collection services contracted for by engaging in practices that delayed collection of payments, increased the number and amounts of advances owed, and generated larger interests and charges in excess of limits set forth in the Agreement. It is further alleged that the billing defendants failed to seek, through their supervision of attorneys, the imposition of demands for payments.

The amended complaint contains allegations that the defendants, generally or otherwise collectively, violated agreements with plaintiffs by failing to follow up on demands, mishandling of collection, and failing to seek legal assistance in pursuing such collection through no-fault demands, arbitrations, or other legal proceedings. Further, plaintiffs allege, with little to no factual support, that the billing defendants and the law firm defendants were alter egos of each of other and that they represented plaintiffs while simultaneously doing business with them for collection services. Though plaintiffs claim that the defendants departed from either reasonable legal practice or the terms of the Agreement, plaintiffs do not allege any instance of same.

On a motion to dismiss for failure to state a cause of action under CPLR 3211 (a) (7), courts afford the pleadings a liberal construction, accept the facts as alleged in the complaint as true, and give the plaintiff the benefit of every possible favorable inference. (Leon v Martinez, 84 NY2d 83, 87 [1994]; JF Capital Advisors, LLC v Lightstone Group, LLC, 25 NY3d 759, 764 [2015].) The court's inquiry is limited to assessing the legal sufficiency of the plaintiff's pleadings; accordingly, its only function is to determine whether the facts as alleged fit within a cognizable legal theory. (JF Capital Advisors, 25 NY3d at 764; Skill Games, LLC v Brody, 1 AD3d 247, 250 [1st Dept 2003].) "Statements in a pleading shall be sufficiently particular to give the court and parties notice of the transactions, occurrences, or series of transactions or occurrences, intended to be proved and the material elements of each cause of action or defense." (CPLR 3013.)

In motion sequences 006 and 007, defendants the Russel Friedman Law Group, LLP, Charles H. Horn, Esq., Neil Flynn, Esq., Phillip Hakyeon Kim, Esq., and Ronald Frederick [*2]Wright, Jr., Esq., and defendants Drachman Katz, LLP and Revaz Chachanashvili and Associates P.C., respectively, move to dismiss plaintiffs' first through sixth causes of action for legal malpractice and seventh cause of action for breach of contract, which the Court notes asserts claims sounding in breach of fiduciary. In the interests of judicial economy and consistency, both motions, which seek dismissal of functionally identical causes of action, are addressed jointly.

The law firm defendants argue, chiefly, that the legal malpractice claim is insufficient as a matter of law as the amended complaint contains no allegations as to a discrete instance of breach, that plaintiffs insufficiently pled proximate causation from attorneys' negligence, and that the allegations as to a conflict of interest do not adequately form a basis for breach of fiduciary duty claims. Specifically, they argue that plaintiffs' claims are premised upon the law firm defendants' representation of plaintiffs in various undefined and unspecified "arbitrations and litigations."^[FN2] Further, the allegations as to the individual attorneys and law firms are conclusory, as they lack specificity regarding the nature of the representation at issue or the actual transactions involved. Moreover, the law firm defendants argue that the alleged conflict of interest purported to form the basis of plaintiffs' legal malpractice claims is similarly conclusory in that it consists of unsupported allegations that the law firms did business with plaintiffs under the guise of the billing defendants, M&D Capital and Lake Success, while simultaneously representing plaintiffs. Accordingly, the law firm defendants also refute the sufficiency of an alleged "ethics violation" based on conflict of interest as the basis for legal malpractice claims. Lastly, it is argued that the allegations as to the individual attorney defendants are likewise conclusory. Aside from asserting their place of business, claiming that they provided legal services to Metro Pain, and alleging that they engaged in unspecified departures from good practice, the complaint contains no allegations that form the basis for the legal malpractice and breach of fiduciary duty claims.

To sustain a cause of action for legal malpractice at the pleading stage, a plaintiff must show "(1) that the attorney was negligent; (2) that such negligence was a proximate cause of plaintiff's losses; and (3) proof of actual damages." (Brooks v Lewin, 21 AD3d 731, 734 [1st Dept 2005], lv denied, 6 NY3d 713 [2006].) The plaintiff must plead specific facts that, if true, demonstrate "that the attorney failed to exercise 'the ordinary reasonable skill and knowledge' commonly possessed by a member of the legal profession." (Darby & Darby v VSI Int'l, 95 NY2d 308, 313 [2000].) Unsupported factual allegations and conclusory legal arguments do not suffice for pleading a legal malpractice cause of action. (Dweck Law Firm, LLP v Mann, 283 AD2d 292 [1st Dept 2001].)

Here, the amended complaint is bereft of allegations as to a discrete instance of attorney negligence — a departure from the exercise of ordinary reasonable skill and knowledge commonly possessed by an attorney — in the representation of plaintiffs. Specifically, plaintiffs allege that the law firm defendants failed to commence certain proceedings to the effect of delaying collection and billing practices. Yet, the amended complaint does not contain allegations that sufficiently support proximate causation and damages, as it merely asserts that [*3]such departures in legal representation caused unspecified financial damage to plaintiffs. Indeed, dismissal is warranted where a complaint merely alleges that, but for attorney defendants' failure to provide timely and competent legal services, a plaintiff would have succeeded in underlying debt collection and mortgage foreclosure actions. (See Mid-Hudson Valley Federal Credit Union v Quartararo & Lois, PLLC, 155 AD3d 1218 [3d Dept 2017] affd 31 NY3d 1090 [2018].) In Mid-Hudson v Quartararo & Lois, PLLC, the Court observed that, like here, absent from the amended complaint is any mention of an instance of deficient representation or any example of erroneous advice by defendants. The Court thus held that merely alleging the elements of a legal malpractice claim in a general fashion, without more, does not satisfy the liberal pleading standard of CPLR 3211. This Court follows suit. Moreover, the Court is mindful that speculative and conclusory allegations of proximately caused damages cannot serve as a basis for a legal malpractice claim. (Freeman v Brecher, 155 AD3d 453, 453 [1st Dept 2017] citing Garnett v Fox, Horan & Camerini, LLP, 82 AD3d 435, 436 [1st Dept 2011].) Therefore, the Court finds the allegations in the complaint fails to state a cause of action against the law firm defendants on this grounds.

Similarly, plaintiffs' legal malpractice claims premised on a conflict of interest are insufficiently pled. To plead liability for legal malpractice based upon an alleged conflict of interest, a plaintiff must allege a causal relationship between the conflict of interest and the damages sustained. (Kaminsky v Herrick, Feinstein LLP, 59 AD3d 1, 13 [1st Dept 2008].) To the extent plaintiffs allege that "there would have been a better financial outcome for Plaintiff" but for the law firm defendants' departures, said claims for legal malpractice are, without more, too speculative to be ascertainable. (Cohen v Kachroo, 115 AD3d 512, 513 [1st Dept 2014].) In any event, the speculative nature of plaintiff's claim of damages arising from the law firm defendants' alleged conflicts of interest in representing plaintiffs while simultaneously doing business with them through the billing defendants cannot support a legal malpractice claim. (See e.g. Freeman v Becher, 155 AD3d 453, 454 [1st Dept 2017].) Neither does the alleged violation of the New York Rules of Professional Conduct, alone, suffice to support plaintiffs' claims of legal malpractice. (Cohen v Kachroo at 513.)

Turning to plaintiffs' breach of contract claim, herein addressed as, functionally, a breach of fiduciary duty claim, the Court finds same to be duplicative of the legal malpractice claims. New York courts have consistently held that breach of fiduciary duty claims, when premised on the same facts and seeking the identical relief as legal malpractice claims, are redundant and subject to dismissal. Weil, Gitshal & Manges, LLP v Fashion Boutique of Short Hills, Inc., 10 AD3d 267, 271 [1st Dept 2004].) Here, the seventh cause of action against the law firm defendants clearly states that "[b]y reason of their attorney client relationships and other relationships as alleged herein, all attorney Defendants owed Plaintiffs the duties of a fiduciary." (See NYSCEF doc. no. 37 at ¶ 149.) The breach of same duties is alleged to be the failure of the law firm defendants to manage filing dates, calendars, and deadlines, which is not distinct from the alleged departures from the reasonable skill and knowledge that form the basis for plaintiffs' legal malpractice claims. (See Freeman v Brecher, 155 AD3d 453, 453 [1st Dept 2017] citing Garnett v Fox, Horan & Camerini, LLP, 82 AD3d 435, 436 [1st Dept 2011].) The Court has considered all remaining arguments and finds them to be unavailing. Thus, motion sequences 006 and 007, seeking dismissal of plaintiffs' first through seventh causes of action are granted.

In motion sequences 005 and 008, M&D Capital and Lake Success, respectively, move to dismiss plaintiffs' eighth and ninth causes of action for breach of contract and breach of fiduciary duty. As both motions address the same causes of action and seek dismissal under nearly identical grounds, they are addressed jointly. For the following, both are granted.

In support of their motions, M&D Capital and Lake Success argue that the pleadings are insufficient under CPLR 3013, where the complaint merely alleges the existence of a contract for billing services but fails to allege the breach of a specific provision. Further, as a preliminary matter, the complaint appears to seek damages for the breach of a "contract for the provision of legal services" while simultaneously alleging that M&D Capital and Lake Success are corporations contractually retained for the provision of "various Collection Services." (See generally NYSCEF doc. no. 37.) The billing defendants further argue that the complaint is otherwise replete with vague and conclusory allegations as to the breach of a contract and resulting damages, rendering any reasonable inference to the latter as unascertainable.

To plead a cause of action for breach of contract, a plaintiff must allege that: (1) a contract exists; (2) plaintiff performed in accordance with the contract; (3) defendant breached its contractual obligations; and (4) defendant's breach resulted in damages. (34-06 73, LLC v Seneca Insurance Company, 39 NY3d 44, 52 [2022] [citations omitted].) Vague and conclusory allegations are insufficient to sustain a breach of contract cause of action. (Jones v Voskresenskaya, 125 AD3d 532, 533 [1st Dept 2015]; see also Gordon v Dino De Laurentiis Corp., 141 AD2d 435, 436 [1st Dept 1988].)

While plaintiffs have pled the existence of agreements with M&D Capital and Lake Success, the remaining elements required to assert a cause of action for breach of contract are absent from the amended complaint. Plaintiffs allege that Lake Success and M&D Capital, respectively, entered into agreements with plaintiffs in February 2019 for collection services. (See NYSCEF docs. no. 73, Lake Success "Financing Agreement," and 76, M&D Capital "Service Agreement.") Yet, plaintiffs premise their breach of contract claim upon a contract "for the provision of legal services."^[FN3] Furthermore, though the breach of contract causes of action intend to state a claim on behalf of "plaintiffs" collectively, the agreements, as alleged and as filed in support of this motion, are signed only by plaintiff Shapiro on behalf of Metro Pain. (Id.) This notwithstanding, the allegations do not meet CPLR 3013 requirements. Although plaintiffs cite to "Article 1, Sections 1.1-1.5" as the sections allegedly breached by Lake Success, plaintiffs have yet to articulate the breach of any such provisions or terms. Notably, it appears from the complaint that the breaches, as alleged against the billing defendants, are premised upon their failure to supervise and/or seek through the attorneys engaged in collection services, demands for payments or legal assistance. Furthermore, that the billing defendants somehow were able to, and chose not to, supervise party or non-party attorneys' functions to the effect of breaching their collection services agreements at the detriment of plaintiffs is conclusory and [*5]devoid of merit.^[FN4]

As to plaintiffs' claims for breach of fiduciary duty against the billing defendants, these claims are likewise dismissed. Plaintiffs were required to allege (1) that the billing defendants owed a fiduciary duty to plaintiffs; (2) that the billing defendants committed misconduct; and (3) that plaintiffs suffered damages caused by said misconduct. (See Besen v Farhadian, 195 AD3d 548, 549 [1st Dept 2021].) A cause of action sounding in breach of fiduciary duty must be pled with particularity. (CPLR 3016 [b]; New York Marine & General Insurance Company v Wesco Insurance Company, 213 AD3d 461, 462 [1st Dept 2023].)

Here, the amended complaint is bereft of any factual support for the assertion that the billing defendants owed a fiduciary duty to plaintiffs, collectively or otherwise, aside from a conventional business relationship. (See Felman v Byrne, 210 AD3d 646, 650 [2d Dept 2022] ["a conventional business relationship, without more is insufficient to create a fiduciary relationship. Rather, a plaintiff must make a showing of 'special circumstances' that could have transformed the parties' business relationship to a fiduciary one, such as control by one party of the other for the good of the other"]; see also Saul v Cahan, 153 AD3d 947, 949 [2d Dept 2017] ["A fiduciary relationship may exist when one party reposes confidence in another and reasonably relies on the other's superior expertise or knowledge, but not in an arm's-length business transaction involving sophisticated business people."].) Indeed, "an arms-length business relationship does not give rise to a fiduciary obligation." (WIT Holding Corp. v Klein, 282 AD2d 527, 529 [2d Dept 2001].)

Aside from alleging that the billing defendants were retained to provide collection services and the handling of confidential medical records, nothing in the amended complaint can be reasonably construed as supporting misconduct directly attributable to those defendants. As aforementioned, the alleged misconduct upon which these claims are based pertains, in turn, to the law firm defendants' conduct found herein to be legally insufficient. Further, the lumping of M&D Capital and Lake Success on the breach of fiduciary duty cause of action is "impermissible" per CPLR 3016 (b). (See Jonas v National Life Ins. Co., 147 AD3d 610, 612 [1st Dept 2017].) The Court further finds there to be no basis for imputing fiduciary obligations based on the allegation that Revaz Chachanashvili and Associates P.C. and Drachman Katz, LLP are alter egos of Lake Success and M&D Capital, as this claim is wholly conclusory with no supporting facts alleged. (2406-12 Amsterdam Assoc. LLC v Alianza LLC, 136 AD3d 512, 512 [1st Dept 2016] [holding that plaintiffs must plead the elements of alter ego liability in a non-conclusory manner].) Therefore, motion sequences 005 and 008 are granted, and plaintiffs' eighth and ninth causes of action are dismissed.

In their cross-motion, plaintiffs move pursuant to CPLR 3025 (b) for leave to file a second amended complaint, adding "The Russel C. Friedman Revocable trust and Elaine Friedman as Trustee of the Russel C. Friedman Revocable Trust" as a named defendant to the second, eighth, and ninth causes of action for legal malpractice, breach of contract, and breach of fiduciary duty, respectively. The cross-motion is opposed. As set forth below, same is denied.

However, "in determining whether to grant leave to amend the court must examine the [*6]underlying merits of the causes of action asserted therein, since, to do otherwise, would constitute a waste of judicial resources." (Scott v Bell Atlantic Corp., 282 AD2d 180, 185 [1st Dept 2001] affd as modified sub nom. Goshen v Mut. Life Ins. Co. of New York, 89 NY2d 314 [2002].) Indeed, "[a] proposed amendment that cannot survive a motion to dismiss should not be permitted." (Id.) Here, in support of their cross-motion, plaintiffs argue that the proposed amendments, aimed at refining the identity of the ownership interest in Lake Success, do not constitute prejudice to the defendants in this action. Yet, plaintiffs fail to cure any of the pleading deficiencies that form the bases of the defendants' multiple motions to dismiss, even after having filed an amended complaint in response to the initial motions to dismiss. As the proposed second amended complaint cannot survive a motion to dismiss on the aforementioned grounds, the cross-motion for leave to file a second amended complaint is denied.

Accordingly, it is hereby.

ORDERED that defendants the Russell Friedman Law Group, LLP, Charles Horn, Esq., Neil Flynn, Esq., Phillip Hakyeon Kim, Esq., Ronald Frederick Wright, Jr. Esq., the Estate of Russell C. Friedman, deceased, Lake Success Receivables Recovery, Inc., M & D Capital Premier Billing, LLC, Drachman Katz, LLP, and Revaz Chachanashvili and Associates P.C.'s respective motions to dismiss under motion sequences 005, 006, 007, and 008 are granted in their entirety; and it is further

ORDERED that plaintiffs' cross-motion for leave to file a second amended complaint is denied; and it is further

ORDERED that the amended complaint is hereby dismissed; and it is further

ORDERED that within ten (10) days of entry counsel for defendants shall file a copy of this Decision and Order, with notice of entry, upon all parties to this action via NYSCEF.

This constitutes the Decision and Order of the Court.