A claim unique to the legal malpractice world is that of privity of contract. Long ago left behind in most spheres of the law (see: products liability), privity is still required in order to sue an attorney for departures from good practice. While there is a slim exception for fraud, collusion, malice and other special circumstances, it is the general rule that you can sue your attorney, but not someone else’s. We see the consequences in Caputo v Tubiolo 2025 NY Slip Op 01532 Decided on March 14, 2025 Appellate Division, Fourth Department
“Memorandum: Plaintiff, a medical doctor, commenced this legal malpractice action alleging that defendants were negligent in their representation of plaintiff with respect to charges asserted against him by the New York State Office of Professional Medical Conduct (OPMC). Supreme Court granted defendants’ motion seeking summary judgment dismissing the complaint and denied plaintiff’s cross-motion seeking, inter alia, leave to amend the complaint to conform the pleadings to the proof and summary judgment on the complaint. We affirm.
We conclude that defendants met their initial burden on their motion (see generally Zuckerman v City of New York, 49 NY2d 557, 562 [1980]). “In order to establish their entitlement to judgment as a matter of law, defendants had to present evidence in admissible form establishing that plaintiff[ ] [is] ‘unable to prove at least one necessary element of the legal malpractice action’ ” (Seubert v Marchioni, 112 AD3d 1370, 1371 [4th Dept 2013], lv denied 22 NY3d 865 [2014]), e.g., that defendants ” ‘failed to exercise that degree of care, skill and diligence commonly possessed by a member of the legal community’ ” (Phillips v Moran & Kufta, P.C., 53 AD3d 1044, 1044-1045 [4th Dept 2008]; see Scartozzi v Potruch, 72 AD3d 787, 789-790 [2d Dept 2010]; see generally Rudolf v Shayne, Dachs, Stanisci, Corker & Sauer, 8 NY3d 438, 442 [2007]). Here, plaintiff alleges that defendants deviated from the standard of care by failing to timely answer the statement of charges asserted by OPMC in a professional misconduct proceeding, and the evidence that defendants submitted in support of their motion establishes that defendants did not have an attorney-client relationship with plaintiff at the time of the default (see Berry v Utica Natl. Ins. Group, 66 AD3d 1376, 1376 [4th Dept 2009]). Plaintiff’s unilateral belief that he was defendants’ client is insufficient to confer that status upon him (see id.). We further conclude that defendants established that any negligence on their part was not a proximate cause of plaintiff’s alleged damages (see Dabiri v Porter, 227 AD3d 860, 861 [2d Dept 2024]; Casey v Exum, 219 AD3d 456, 457 [2d Dept 2023]). In opposition to the motion, plaintiff failed to raise an issue of fact (see generally Zuckerman, 49 NY2d at 562).”