YONG WONG PARK v. WOLFF AND SAMSON (2008)

Order, Supreme Court, New York County (Shirley Werner Kornreich, J.), entered June 12, 2007, which granted defendants' motion to dismiss the complaint for failure to state a cause of action, unanimously affirmed, with costs.

 Plaintiffs' claim that defendants committed legal malpractice by advising plaintiff Yong Wong Park to plead guilty to a federal charge of trafficking in counterfeit goods without advising him of the immigration consequences of his guilty plea, or by giving him wrong legal advice about such consequences, is barred by Park's undisturbed guilty plea (see Carmel v. Lunney, 70 N.Y.2d 169, 173, 518 N.Y.S.2d 605, 511 N.E.2d 1126 [1987] ).   We reject plaintiffs' argument that innocence need not be alleged where, as here, the alleged malpractice related to a collateral matter (deportation) rather than the core of the criminal action (see Biegen v. Paul K. Rooney, P.C., 269 A.D.2d 264, 703 N.Y.S.2d 121 [2000], lv. denied 95 N.Y.2d 761, 714 N.Y.S.2d 711, 737 N.E.2d 953 [2000];  see also Casement v. O'Neill, 28 A.D.3d 508, 812 N.Y.S.2d 649 [2006] [guilty plea bars malpractice claim regardless of plaintiff's subjective reasons for pleading guilty] ).   There are other deficiencies in the legal malpractice claim requiring its dismissal:  it does not allege that “but for” defendants' alleged malpractice Park would not have pleaded guilty (see Carmel, 70 N.Y.2d at 173, 518 N.Y.S.2d 605, 511 N.E.2d 1126);  and to the extent the claim is based on the allegation that defendants affirmatively gave Park wrong advice about the immigration consequences of a guilty plea, such allegation conflicts with, and is precluded by, contrary factual findings made in the federal proceedings in which Park sought to vacate his plea on the ground of ineffective assistance of counsel (see Siddiqi v. Ober, Kaler, Grimes & Shriver, 224 A.D.2d 220, 637 N.Y.S.2d 399 [1996], lv. denied 88 N.Y.2d 812, 649 N.Y.S.2d 380, 672 N.E.2d 606 [1996] ).   Plaintiffs' claim for breach of fiduciary duty, based on the allegation that one of defendants falsely testified in the federal hearing that he never gave Park any advice as to the immigration consequences of a guilty plea, is likewise barred by collateral estoppel.   Plaintiffs' claim for negligent infliction of emotional distress, which alleges that Park's wife and children suffered emotional distress as a result of Park's conviction, was properly dismissed for lack of an allegation showing any kind of duty owed by defendants to Park's wife and children (see Sheila C. v. Povich, 11 A.D.3d 120, 130, 781 N.Y.S.2d 342 [2004] ), and also because the alleged malpractice is not so extreme and outrageous as to be utterly intolerable in a civilized community (see id.;  Wilson v. City of New York, 294 A.D.2d 290, 295, 743 N.Y.S.2d 30 [2002] ).